Citation Nr: 20047545 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 10-04 301 DATE: July 16, 2020 REMANDED Entitlement to a rating in excess of 10 percent for a low back strain with osteoarthritis and intervertebral disc syndrome for the period prior to October 1, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1985 to January 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to a rating in excess of 10 percent for a low back disability during the period prior to October 1, 2010, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This case was previously before the Board in September 2013, at which point the claim was remanded to the RO for further development. In July 2016 the claim returned to the Board and was denied on the merits. The Veteran subsequently appealed the Board’s July 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2017 the Court issued a memorandum decision setting aside the Board’s decision, holding that the July 2016 Board decision was inadequate, as the Board relied on a December 2008 VA examination that did not adequately address additional range of motion loss during flare-ups. The Court concluded that a remand was necessary for an “examination or opinion that attempts to quantify the effects of pain during flare-ups for the period beginning before October 1, 2010.” The claim was returned to the Board in November 2018 and was once again remanded to the RO for further development. In April 2019 the claim was returned to the Board and was once again denied. The Veteran subsequently appealed the Board’s April 2019 decision to the Court. In January 2020 the Court issued a joint motion for partial remand, holding that the April 2019 Board decision was inadequate, as the Board failed to address contentions raised by the Veteran. (3/12/2019, Third Party Correspondence, p. 2). Specifically, the Court found that the April 2019 decision failed to address the adequacy of a January 2019 VA examination, an examination that formed the basis of the Board’s decision. In light of the Board’s lack of direct response to the Veteran’s argument, the Court concluded that the April decision should be vacated, and the claim remanded to the Board for further development. The issue is now returned to the Board for such action. At the outset, the Board notes that the January 2019 VA examiner was asked to opine on the functional impact, expressed in terms of loss of range of motion, of flare-ups reported at the time of the December 2008 examination, based on clinical findings and lay reports. After a review of the January 2019 VA examination, the Board concludes that it is inadequate for rating purposes. In this regard, the examiner opined that the December 2008 VA examination was “thorough and complete,” and correctly reported range of motion loss during flare-ups. (1/16/2019, C&P Exam, p. 3). However, as previously noted, the Court determined that the December 2008 VA examination failed to adequately address additional range of motion loss during flare-ups. As the January 2019 VA examiner merely reiterated the findings of the December 2008 examination, an examination which was determined to be legally inadequate by the Court in a September 2017 memorandum opinion and by the Board in a November 2018 decision, the Board finds that the January 2019 VA examination is inadequate for evaluation purposes. As such, the Board concludes that a new opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the severity of the Veteran’s service-connected low back strain from an appropriate clinician. The clinician must estimate the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing at the time of the December 2008 VA examination. If it is not possible to provide an estimation 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. Additionally, the clinician must estimate the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups at the time of the December 2008 VA examination. If it is not possible to provide an estimation 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. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.