Citation Nr: 20043563 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 03-26 956 DATE: June 29, 2020 REMANDED Entitlement to a disability rating in excess of 30 percent from February 10, 2005 for degenerative joint disease of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran had active service from April 1966 to April 1969. This matter come before the Board of Veterans’ Appeals (Board) on appeal following January 2004 and December 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2003 the Veteran testified before a Decision Review Officer at the RO. In November 2005, he testified before a Veterans Law Judge during a Travel Board hearing at the RO. In April 2012, the Veteran testified before the undersigned during a videoconference hearing. At the last hearing, the Veteran waived his right to a hearing before the third member of the panel deciding this appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The first VLJ is no longer employed by the Board. By way of history, in the January 2004 rating decision, the RO granted service connection and assigned a 10 percent evaluation for degenerative joint disease (DJD) of the lumbosacral spine. In a February 2005 rating decision, the RO increased the evaluation assigned the service-connected degenerative joint disease of the lumbosacral spine to 30 percent effective February 10, 2005. In September 2006, the Board remanded, in part, the above claim on appeal. In a later December 2008 decision, the Board denied the increased rating claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (hereinafter “Court”). In an August 2009 Joint Motion for Remand (JMR), the parties to the JMR concluded that vacatur and remand were required. In March 2010, May 2011, and March 2013 the Board again remanded the Veteran’s claim on appeal. In a February 2016 decision, in pertinent part, the Board maintained a 30 percent rating from February 10, 2005, for the Veteran’s lumbosacral spine disability. In response to the February 2016 decision, the Veteran appealed the decision to the Court of Appeals for Veterans Claims (CAVC). In a Memorandum Decision in November 2017, the Court vacated the Board’s determination regarding the issue at hand and remanded the matter for further consideration. In July 2018 the Board remanded the issue in compliance with the Court’s directives. Entitlement to a disability rating in excess of 30 percent from February 10, 2005 for degenerative joint disease of the lumbosacral spine. In the November 2017 Memorandum CAVC decision, the Court, in pertinent part, found that prior VA examinations in February 2005, October 2006, June 2010, and December 2014, which the Board relied on for the February 2016 decision, were inadequate for rating purposes. Specifically, the Court found that although the Veteran had complained of flare-ups of his lumbosacral spine disability, none of these VA examiners provided both statements as to “their severity, frequency, and duration” or “estimate ‘per the veteran’ to what extent, if any, they affect functional impairment.” Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Court noted that to the extent examiners found that they would resort to speculation to opine as to the additional functional loss during flareups, no examiner found that they “had considered all procurable and assembled data” before reaching this conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As such, the Court concluded that the Board failed to ensure that the duty to assist was satisfied when it denied higher ratings for the Veteran’s degenerative joint disease of the lumbosacral spine. 38 U.S.C. § 5103A. The Court found that a remand was required for the Board to obtain an examination that adequately considers whether the Veteran’s flare-ups result in loss of functionality. In compliance with the Court’s directives, the Board in the July 2018 remand instructed that the Veteran be scheduled for a VA examination and requested that the examiner include ranges of motion of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The Board instructed that the examiner express an opinion estimating loss of range of motion and estimating loss of functional ability during repetitive use and flare-ups and asked that if possible, the examiner provide medical opinions as to the severity of the Veteran’s service-connected lumbar spine disability from February 2005 to the present. The Board noted that a complete rationale must be provided for opinions expressed and if it could not be provided without resorting to speculation the examiner should explain why this is the case. The Veteran was afforded a VA back examination in March 2019 however, the examiner did not comply with the above directives as the examiner did not provide range of motion findings that are painful on weight-bearing nor did he provide a rationale for why passive motion cannot be performed or is not medically appropriate. The examiner also did not express an opinion estimating loss of range of motion and estimating loss of functional ability during repetitive use and flare-ups as he stated that the Veteran would note reduced ability to repetitively bend and do heavy lifting due to pain. Furthermore, the examiner stated that the question of range of motion during flare-ups was not applicable as there were no flares. He asserted that the Veteran did not have flare-ups as he denied episodes of debilitating pain. The examiner’s determination that the Veteran did not have flare-ups is inconsistent with multiple VA examinations discussed above showing flare-ups and with his own notation that the Veteran’s back pain continued since service and was worse with bending forward, extensive standing, and sitting. Notably, the Court in the November 2017 Memorandum Decision found previous VA examinations including in August 2013 and December 2014 were inadequate as the examiners concluded that the Veteran did not report functional loss due to flare-ups yet noted that bending, walking, and sitting for prolonged periods increased the Veteran’s pain. Lastly, the examiner’s response to the question to provide medical opinions as to the severity of the Veteran’s service-connected lumbar spine disability from February 2005 to the present was “(n)ot applicable” with no rationale for the inability to make such a determination. Thus, the Agency of Original Jurisdiction (AOJ) did not comply with the Board’s remand directives. Compliance with the Board’s remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board does not have a choice but to remand this issue for the Veteran to be afforded a thorough VA back examination that is in compliance with the Board’s remand directives. The matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected lumbosacral spine disability. The claims file and a copy of this remand must be made available for review. All indicated tests should be performed and all findings should be reported in detail. a.) The examination report must include ranges of motion of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. 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. b.) The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner also should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the lumbosacral spine. c.) The VA examiner must express an opinion estimating loss of range of motion and estimating loss of functional ability during repetitive use and flare-ups. It is essential that the examiner attempt to elicit information regarding the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares to include the degree of functional loss during flare-ups from the Veteran himself. The examiner is hereby advised that the Veteran has an extensive history of flare-ups documented on previous VA examinations and on his most recent March 2019 VA examination reported increased pain with bending, walking, and sitting for prolonged periods. The examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. VA’s Clinician’s Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. An opinion stating merely that the examiner is unable to evaluate, without mere speculation, functional ability after repetitive use as the Veteran was not examined following repeated use over a period of time is insufficient. An opinion stating merely that the examiner is unable to evaluate, without mere speculation, whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups as the veteran was not examined during a flare-up is insufficient. d.) If possible, the VA examiner should provide medical opinions as to the severity of the Veteran’s service-connected lumbar spine disability from February 2005 to the present. The VA examiner should provide an opinion as to the functional impact of flare-ups that can be estimated for the other VA examinations conducted during the appeal period to include VA examinations dated in February 2005, October 2006, June 2010, and December 2014. If the examiner is unable to provide a retrospective opinion as to functional impact of flare-ups throughout the appeal period, he or she should clearly explain why. A complete rationale must be provided for any opinion expressed. If any opinion cannot be provided without resorting to mere speculation, the examiner must affirm that all procurable and assembled data was fully considered and fully explain why this is the case and identify what additional evidence/information (if any) may allow for a more definitive opinion. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.