Citation Nr: 20043530 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-20 295 DATE: June 29, 2020 REMANDED Entitlement to a rating in excess of 20 percent prior to January 22, 2020, and in excess of 40 percent therefrom for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served in the U.S. Marine Corps from November 1995 to November 1999, and in the Navy from August 2000 to July 2004. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018 and again in December 2019, the Board remanded the matter for further development. A January 2020 rating decision increased the Veteran’s rating for lumbar spine disability to 40 percent effective January 22, 2020. Entitlement to a rating in excess of 20 percent prior to January 22, 2020, and in excess of 40 percent therefrom for lumbar spine disability. The Veteran contends that her lumbar spine disability warrants higher ratings. Specifically, she states that she suffers from extreme lower back pain necessitating her to go to emergency room, including in January 2020, and that her pain results in “zero range of motion.” See Correspondence (January 2020). She stated that the January 2020 VA examination did not check for low back pain. See Correspondence (February 2020). She further stated that her low back pain has worsened and interferes with work, and that the January 2020 VA examination incorrectly provided that she was able to lift more than 50 pounds. See Correspondence (February 2020). In May 2020, she stated that she would be undergoing another injection for her low back pain in July 2020. See Correspondence (May 2020). She detailed the medication that she takes for her lumbar spine disability. Id. To ensure VA has met its duty to assist, remand is necessary to afford the Veteran another VA examination and obtain a retrospective medical opinion, as explained below. 38 C.F.R. § 3.159(c). First, the Board finds that the medical record requires clarification and a retrospective medical opinion in this matter. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a “retrospective” medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The July 2019 VA examination showed the Veteran’s report of moderate to severe flare-ups every 1-3 months lasting from 1-3 weeks a month. The examiner also noted the Veteran’s reports of flare-ups were precipitated by being on her feet for too long or lifting something heavy. The examiner noted that flare-ups were alleviated by heating pillow, laying on the side, Icy Hot and Motrin. However, the examination did not provide estimates of range of motion findings during flare-ups. The Veteran also reported flare-ups of pain resulting from being on her feet and lifting something heavy, but no range of motion estimates on weight-bearing are of record. A retrospective medical opinion is necessary to address the level of impairment prior to January 22, 2020 with consideration of these factors after review of the relevant treatment records, examinations and the Veteran’s lay reports. Second, the Board also notes that the January 2020 VA examination report reflects that there was no functional impact on the Veteran’s ability to work due to her lumbar spine disability. However, since that examination, in January 2020, the Veteran reported that she checked herself into an emergency room after having “zero range of motion because of the pain I am in.” See Correspondence (January 2020). She asserted that her low back pain has worsened and interferes with her work. See Correspondence (February 2020). Additionally, a March 2020 VA treatment note shows that the Veteran had to miss work due to her back pain radiating into her right leg. See CAPRI (June 2020). The record also shows emergency room visits in February 2020. Id. Given the medical evidence showing a significant intervening medical history, which may have impacted the severity Veteran’s service-lumbar spine disability, the Board finds that a new VA examination is warranted out of an abundance of caution. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2020 to the Present. 2. Thereafter, schedule the Veteran for an examination of the severity of her lumbosacral spine disability. The examiner should provide a full description of the disability examined and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Current Level of Impairment: (a.) Test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) Elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the impact of her back disability on employment. The examiner should identify all limitations or functional impairment (physical and mental) caused solely by service-connected back disability. Past Level of Impairment: (d.) To the extent feasible, attempt to provide a retrospective assessment of the Veteran’s range of motion during flare-ups and after repetitive use prior to January 22, 2020 based on past and current medical history, clinical findings, treatment records and the Veteran’s lay reports. If the examiner is unable to provide a retrospective opinion, clearly explain why that is so. If it is not possible to provide an estimated measurement without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.