Citation Nr: 21001059 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-28 074 DATE: January 6, 2021 REMAND Entitlement to a rating higher than 10 percent for service-connected lumbar spine disability for the period prior to December 10, 2015 is remanded. Entitlement to a rating higher than 20 percent for service-connected lumbar spine disability for the period from December 10, 2015 to October 31, 2016 is remanded. Entitlement to a rating higher than 40 percent for service-connected lumbar spine disability for the period beginning November 1, 2016 is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 2003 to July 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma (hereinafter Agency of Original Jurisdiction (AOJ)). In that decision, the AOJ denied the Veteran’s claim for an increased rating for service-connected left thoracolumbar spine disability. The Veteran disagreed with that decision and perfected this appeal. This claim was previously before the Board in March 2018, at which time, the Board denied increased staged ratings for the Veteran’s lumbar spine disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court issued a Memorandum Decision, vacating the Board’s March 2018 decision and remanding the claims for further development. Specifically, the Court held that remand is required for the AOJ to obtain a retroactive Correia-compliant medical opinion for the staged ratings prior to November 1, 2016. In June 2020, the Board remanded this claim to obtain the requisite opinion. In an October 2020 addendum opinion, the VA examiner reiterated prior examination results in February 2012, December 2015, October 2016 and May 2017. The examiner explained that, as it pertained to the thoracolumbar spine, range of motion are always active and not passive, with the Veteran performing range of motion by his own body and not the examiner. It was also noted that it was not feasible to perform passive ROM in a safe and reasonable manner. Additionally, all measurements were considered weight-bearing as the spine bore the weight of the body when taking measurements. It was further noted that the spine had no opposing joint. The Board realizes the difficulty of providing a retrospective opinion in this case. However, the October 2020 addendum cannot be deemed to comply with the prior remand directives. In this respect, the May 2017 examiner conducted passive ROM testing apparently in a safe and reasonable manner, and performed non-weight bearing testing. Thus, the October 2020 examiner’s opinion on feasibility of this type of testing is not borne out by the testing performed in 2017. As such, the examination must be returned as inadequate for rating purposes. Accordingly, these matters are REMANDED for the following: 1. Associate with the claims folder updated VA treatment records as well as all available Veteran Readiness and Employment records. 2. Schedule the Veteran for an examination to assess the current severity of his lumbar spine disability. The entire claims file, to include a copy of this remand, should be provided to the examiner for review. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. The examiner should note that passive testing was conducted during the May 2017 VA examination and should be conducted unless the current state of the Veteran’s lumbar spine disability renders this type of examination technique to be medically contra-indicated. (b.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment 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)The examiner should also provide retrospective medical findings on the Veteran’s range of motion of his lumbar spine throughout the time period of the claim (VA examinations conducted from February 2012 onward involving the lumbar spine). In addition to the actual recorded findings, with consideration of the evidence of record and his history of lumbar spine complaints, provide estimates of specific measurements for the historical severity of the Veteran’s range of motion testing on both active and passive motion and in weight-bearing and non-weight-bearing and any additional motion loss expected during flares. The examiner should comment whether passive range of motion findings – they had been conducted in February 2012, December 2015, October 2016 and May 2017 - would be medically believed to be consistent, greater or lesser than the recorded active range of motion findings and, if differing, the extent of difference in terms of degrees. If it is not possible to provide specific measurements or an opinion 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). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.