Citation Nr: 20007441 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 08-23 495 DATE: January 29, 2020 REMANDED Entitlement to an initial rating for lumbar disc disease and chronic lumbar strain (lumbar spine disability), in excess of 10 percent disabling prior to February 25, 2010 is remanded. REASONS FOR REMAND The record reflects that the Veteran had active duty service and several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard from February 1981 to July 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision. The Veteran testified at an August 2014 hearing before a Veterans Law Judge who has since retired from the Board. In November 2019, the Veteran was notified that the Veterans Law Judge who conducted her hearing is no longer at the Board, and she was asked to respond within 30 days indicating whether she would like a new hearing. VA has received no response, so the Board will proceed with consideration of the claim. This matter was initially before the Board in October 2014, when it was remanded for additional development. A May 2016 Board decision addressed several issues and, relevant to this appeal, denied an initial disability rating in excess of 10 percent for a lumbar spine disability prior to February 25, 2010. In June 2017, the Court of Appeals for Veterans Claims (Court) vacated the denial of the increased initial rating for a lumbar spine disability prior to February 25, 2010 and remanded the matter to the Board for compliance with a Joint Motion for Remand (JMR). In November 2017, the Board again remanded the matter for additional development in compliance with the JMR approved by the Court. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the November 2017 remand directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to obtain a retrospective opinion regarding her limitation of motion during flare-ups from October 20, 2005 to February 25, 2010. The examiner was asked to record the Veteran’s reports and interpret the report in degrees of motion, as well as provide an opinion based on a review of the records whether the Veteran’s reports are consistent with the back disability demonstrated during the relevant period on appeal. If the Veteran is unable to report her ranges of back motion during this period, the examiner was asked to note this and attempt to estimate the likely limitations during flare-ups based on the other evidence of record. Since the November 2017 remand, the Veteran has been examined three times by three different examiners. A January 2018 examination report only addressed the Veteran’s current condition without providing a retrospective opinion regarding limitation during the period on appeal. A January 2019 examiner opined the Veteran’s reports of limitation, including reports of limited range of motion, were consistent with the back disability demonstrated during the period from October 20, 2005 to February 25, 2010, but failed to record the Veteran’s reports or provide an estimate of the degree of limitation of range of motion caused by these flares. In July 2019, a third examiner provided a negative opinion of the Veteran’s reports, indicating a review of the file failed to show the Veteran had a chronic back condition during the period on appeal, a conclusion that is contradicted by the previous medical opinion and the medical evidence of record. Based on these reports, none of the examinations provided since the November 2017 remand have substantially complied with the remand directives. An additional remand is therefore necessary under Stegall. The matters are REMANDED for the following action: Obtain a new retrospective medical opinion from an appropriate clinician regarding the limitation of motion during flare-ups of the Veteran’s lumbar spine disability from October 20, 2005 to February 25, 2010. Schedule a new examination only if deemed necessary by the clinician. The selected clinician should review the available reports of pain, weakness, and limitation of motion in the record during the period from October 20, 2005 to February 25, 2010, as well as prior medical opinions addressing this period. If a new examination is provided, the examiner should ask the Veteran to describe the flare-ups she experienced during this period, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experienced during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the selected clinician should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If an estimate cannot be provided regarding the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the clinician should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the clinician (i.e. additional facts are required, or the clinician does not have the needed knowledge or training). The clinician is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide a reason for doing so. The clinician’s report must include a complete rationale for all opinions provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.