Citation Nr: 1807753 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-16 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to June 13, 2016, and in excess of 20 percent thereafter, for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1991 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, in pertinent part, granted service connection for a low back disability with an initial 10 percent disability rating. This matter was previously before the Board in January 2015. At that time, the Board determined an initial rating in excess of 10 percent for the Veteran's service-connected low back disability was not warranted. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court granted a Joint Motion for Partial Remand (JMPR), vacated the Board decision with respect to the initial rating assigned for the low back disability, and remanded the matter to the Board. In May 2016 the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. In a July 2016 rating decision, the AOJ increased the Veteran's disability rating for his low back disability from 10 percent to 20 percent, effective June 13, 2016. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35 (1993). In May 2017 the case returned to the Board, and was again remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The May 2016 Remand instructed the AOJ to provide the Veteran a medical examination to determine the extent of functional impairment suffered by the Veteran as a result of his service-connected low back disability. A VA examination of the Veteran's thoracolumbar spine was completed in June 2016. The May 2016 Remand specifically directed the examiner to interview the Veteran about the nature of the flare-ups that he reported at his January 2013 VA examination and, to comply with the JMPR, to retroactively assess the impairment level during flare-ups in terms of additional degrees of limitation of motion. This was not accomplished, and in May 2017 the Board again remanded for another examination, again providing specific instructions for the AOJ to interview the Veteran about the nature of, and any functional impairment resulting from, the flare-ups he reported at his January 2013 examination. The Veteran underwent another VA thoracolumbar spine examination in June 2017. Unfortunately, the examiner again failed to interview the Veteran about the nature of the flare-ups that he reported in his January 2013 VA examination as resulting in low back pain, or assess any functional impairment during those flare-ups. The Veteran is entitled to substantial compliance with the Board's remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Finally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 32. As discussed above, the Board finds the June 2017 examination to be insufficient as the examiner did not obtain the Veteran's lay statements as to the extent of his functional loss during a flare-up and, if possible, offer range of motion estimates based on that information. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his low back disability. The claims folder should be made available to and be reviewed by the examiner. All necessary tests should be performed. The examination should be responsive to the appropriate current VA disability benefits questionnaire. a. The examiner must determine the current severity of the Veteran's low back disability. b. The testing for lumbar spine range of motion must be based on both active and passive range of motion, and on weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. c. The examiner must provide an opinion as to any additional functional loss during flare-ups, and provide an estimate of that loss in terms of degrees reduction in range of motion. If the examiner cannot provide such an estimate, the examiner must provide an appropriate explanation of why that could not be done. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. It is not sufficient to conclude that such an estimate cannot be provided solely because the examination was not conducted during a flare-up. d. In providing this opinion, the examiner must attempt to elicit information from both the record and the Veteran regarding the severity, frequency, duration, and functional loss manifestations during flare-ups. The examiner is advised that the Veteran is competent to report his symptoms. The examiner should particularly note the Veteran's reports of the extent of limitation of motion during flare-ups; state whether these reports can be interpreted as showing specific degrees of additional limitation of motion during flare-ups; and whether there is any medical reason for disregarding the Veteran's reports. e. After completion of the above, the examiner must specifically interview the Veteran about the nature of the flare-ups that he reported in the January 2013 VA examination as resulting in low back pain; assess this impairment during flare-ups, and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. The provisos of sections c and d above apply equally to this instruction e. f. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be provided without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. After completion of the above, the AOJ must verify that the examination and opinion are adequate and comply fully with these remand instructions. 3. Readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).