Citation Nr: 20051600 Decision Date: 08/04/20 Archive Date: 08/04/20 DOCKET NO. 09-42 824 DATE: August 4, 2020 REMANDED From October 22, 2007 to September 12, 2014, entitlement to a rating greater than 20 percent for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1959 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a July 2008 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the U.S. Department of Veterans Affairs (VA). In October 2017, the Board granted an increased rating of 20 percent for the Veteran's low back from October 22, 2007 and denied an increased rating of 20 percent prior to September 13, 2014. The Board also denied a rating greater than 40 percent for the low back disorder from September 13, 2014, denied a rating greater than 20 percent for right lower extremity radiculopathy from October 22, 2007, granted a total disability rating based upon individual unemployability (TDIU) effective September 13, 2014, and remanded entitlement to a TDIU prior to September 13, 2014. The Veteran appealed the portion of the October 2017 Board decision that denied a rating greater than 20 percent for his low back disorder from October 22, 2007 to September 12, 2014, to the U.S. Court of Appeals for Veterans Claims (Court). The Veteran did not appeal the Board's denial of a rating greater than 40 percent for the low back disorder from September 13, 2014, or its denial of a rating greater than 20 percent for right lower extremity radiculopathy from October 22, 2007. In an August 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the portion of the October 2017 Board decision that denied a rating greater than 20 percent for his low back disorder from October 22, 2007 to September 12, 2014. It remanded the appeal to the Board for action consistent with the JMPR. For administrative clarity, the Board notes that VACOLS (Veterans Appeals Control and Locator System) shows that the issue of entitlement to TDIU prior to September 13, 2014 currently is in remand status and thus is not before the Board at this time. Issue: From October 22, 2007 to September 12, 2014, entitlement to a rating greater than 20 percent for a low back disorder. In the JMPR, the parties found that the Board provided an inadequate discussion as to whether the Veteran’s pain, or pain during flare-ups, demonstrated a level of functional loss that would approximate a higher disability rating. The JMPR specifically referred to November 2007 and October 2011 VA examinations, explaining that both examinations acknowledged that it was conceivable that pain could further limit back function but that it was not feasible to express this in terms of any additional limitation of motion, as these matters cannot be determined with any degree of medical certainty. Thus, the Board found, in March 2019, these examinations did not comply with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and were thus inadequate. To remediate this problem, the Board ordered a retrospective opinion. The Board's directive, to include sections to comply with both Sharp and Correia v. McDonald, 28 Vet. App. 158 (2016), is quoted in its entirety: After any additional records are associated with the claims file, arrange for a qualified medical professional to provide an appropriate opinion to retrospectively determine the severity of the service-connected lumbar spine disorder from October 22, 2007 to September 12, 2014. If necessary, an examination should be provided. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. (a.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination from October 22, 2007 to September 12, 2014. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be discussed. Based on the Veteran description of flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means. It is vital that all sources of information, including the Veteran’s own statements, be used in describing the above. (b.) The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must provide estimates of the range of motion and pain of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing from October 22, 2007 to September 12, 2014. (c.) The examiner must make reference to the following: 1) a November 2007 VA examination; 2) a December 2007 note from Dr. AR describing functional loss during flare-ups; 3) buddy statements from January 2008; 4) an October 2011 VA examination; and 5) records of private and VA treatment from October 22, 2007, to September 12, 2014. The AOJ copied this language in its directions to the medical professional who it tasked with reviewing the Veteran's file, as seen in a December 12, 2019 "Exam Request" in the claims file. However, the January 2020 VA opinion seemingly omitted subsections (b) and (c) above, as seen in section 2a of the report. Indeed, the medical professional did not discuss the information contained in these two subsections. Therefore, there was not substantial compliance with the Board's March 2019 Remand in violation of Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, another remand is warranted. The matter is REMANDED for the following action: Return the file to the medical professional who provided the January 2020 VA opinion. If the examiner is unavailable another appropriate examiner is asked to review the claims file and do the following: (a.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination from October 22, 2007 to September 12, 2014. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be discussed. Based on the Veteran’s description of flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means. It is vital that all sources of information, including the Veteran’s own statements, be used in describing the above. (b.) The examiner must indicate the point during range of motion testing that motion is limited by pain. The examiner must provide estimates of the range of motion and pain of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing from October 22, 2007 to September 12, 2014. (c.) The examiner must make reference to the following: 1) a November 2007 VA examination; 2) a December 2007 note from Dr. AR describing functional loss during flare-ups; 3) buddy statements from January 2008; 4) an October 2011 VA examination; and 5) records of private and VA treatment from October 22, 2007, to September 12, 2014. M. MAC Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.