Citation Nr: 20041333 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 15-46 460 DATE: June 17, 2020 REMANDED Entitlement to an initial disability rating in excess of 30 percent for tension headaches is remanded. Entitlement to an initial disability rating in excess of 20 percent for lumbar strain is remanded. Entitlement to service connection for a right leg disability, claimed as nerve damage is remanded. Entitlement to service connection for a left leg disability, claimed as nerve damage is remanded. Entitlement to an effective date prior to June 24, 2011 for the grant of a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran served on active duty from October 1979 to February 1986. In May 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This case was before the Board in October 2018, at which time several of the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. REASONS FOR REMAND Although further delay is unfortunate, the Board finds additional development is necessary prior to final adjudication of this matter. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For numerous reasons, the Board finds substantial compliance with the October 2018 remand instructions has not been achieved. Initially, the Board notes that in the course of the October 2018 remand, the RO was instructed to obtain a VA back examination which provided active, passive, weight-bearing, and non-weight bearing range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran underwent a VA examination in December 2019, however, the examiner failed to provide all necessary range of motion assessments. Further, in the course of the October 2018 remand, the RO was also instructed to obtain an assessment of the Veteran’s lumbar spine flare-ups. In particular, the December 2019 examiner was asked to consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. During the examination the Veteran reported experiencing sharp pain during his flare-ups, which he stated limited his range of motion. The examiner failed to provide the additional range of motion loss during flare-ups or discuss other procurable data such as frequency, duration, characteristics, precipitating or alleviating factors. Further, the same examiner also conducted a VA peripheral nerves examination in December 2019. During her examination, the examiner noted the Veteran’s diagnosis of sciatica, and also chronicled the Veteran’s reports of bilateral lower extremity pain, paresthesias, and numbness. Curiously, the examiner then indicated the Veteran’s lower extremity muscle strains were most likely attributable to his myesthenia gravis. The examiner wholly failed to discuss or consider the Veteran’s lower extremity neurological manifestations or diagnoses. Finally, the Board notes the Veteran has asserted his service-connected tension headaches and lumbar strain considerably contribute to his inability to obtain and maintain substantially gainful employment. The evidence also indicates the Veteran has not worked since February 2002. Although the Veteran was awarded a 100 percent schedular rating for his dysthymia with anxiety in the course of the Board’s October 2019 decision, that schedular rating was only effective to June 2011. The Veteran has continuously prosecuted his above-noted headache disorder and lumbar spine disability claims since April 2000, and he has satisfied the schedular requirements for a TDIU since that time. Based on the foregoing, the Board finds a retrospective medical opinion is necessary prior to final adjudication of this matter. Accordingly, these matters are REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined this Veteran, to fully assess the severity of the Veteran’s service-connected lumbar spine and headache disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. Also, following a review of the relevant records and lay statements, the examiner who conducts the Veteran’s lumbar spine examinations should state an opinion with respect to whether any diagnosed lower extremity neurological disability at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected lumbar spine disability; or c) was worsened by his service-connected lumbar spine disability. The examiner must specifically address the Veteran’s reports relative to the etiology of the claimed disabilities. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 3. Finally, obtain from a VA examiner with sufficient expertise, a retrospective assessment of the functional impact of the Veteran’s service-connected disabilities on his employability. Specifically, the examiner should comment on whether there was a 50 percent or better probability that the Veteran’s service-connected disabilities, either singularly or in concert, were sufficient to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background prior to June 24, 2011. In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran’s service-connected disabilities prior to June 24, 2011, to include any potential medications he may have taken for his disabilities. Such impairments include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.