Citation Nr: 21001364 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-36 002 DATE: January 7, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to January 13, 2017, in excess of 20 percent from January 13, 2017 to December 16, 2020, and in excess of 40 percent thereafter for lumbar muscle spasm claimed as back injury (back condition) is remanded. Entitlement to an effective date prior to January 13, 2017, for a 20 percent disability rating for lumbar muscle spasm claimed as back injury (back condition) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1990 to September 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded this matter in February 2019. 1. Entitlement to a rating in excess of 10 percent prior to January 13, 2017, in excess of 20 percent from January 13, 2017 to December 16, 2020, and in excess of 40 percent thereafter for lumbar muscle spasm claimed as back injury (back condition) is remanded. Pursuant to the February 2019 Board remand, a December 2019 VA examination and associated opinion, as well as a September 2020 addendum VA opinion, were obtained for the Veteran’s back condition claim. However, the Board finds the September 2020 addendum VA opinion to be inadequate. Specifically, the examiner was asked to provide a retroactive opinion for the Veteran’s increased rating claim and address the June 2010 private treatment record findings that the Veteran had 30 degrees flexion and 5 degrees extension. In the September 2020 VA opinion, the examiner stated that in the four subsequent VA evaluations, the Veteran did not have any neurological deficit regarding his service-connected lumbar spine condition, lumbar muscle spasms, and non-service-connected lumbar spine degenerative disc disease. Specifically, on Dr. R.R. medical evaluation (the June 2010 private treatment record), the Veteran was found with marked spasm of lumbosacral musculature, positive SLR to the right, and range of motion 30 degrees flexion, extension 5 degrees, and lateral bending 5 degrees. The assessment was chronic lumbosacral myositis. The examiner further stated that in the most recent face to face back evaluation in 2019, the Veteran presented with a decrease in range of motion of the thoracolumbar spine in comparison with 2009 and 2017 back evaluations. The examiner said to note that in the private 2010 evaluation, extension and lateral bending (lateral flexion) were more decreased in comparison with all the VA back examinations in 2009, 2017, and 2019. There was no evidence of bilateral lower extremity radiculopathy in the already mentioned back evaluations. The examiner stated that although the 2010 private evaluations showed a positive SLR right side, the Veteran was not diagnosed with radiculopathy at that time; the only diagnosis was chronic lumbosacral myositis. Also, the Veteran had normal muscle strength in lower extremities and normal deep tendon reflexes in all the evaluations done at VA setting. The examiner noted that deep tendon reflexes and manual muscle testing were not documented at the private setting evaluation in 2010. As per the last 2019 VA examination, there was no evidence of bilateral lower extremity radiculopathy. The Veteran had normal muscle strength in lower extremities and normal deep tendon reflexes. The Veteran had mild to moderate severity regarding his low back service-connected condition. The examiner also noted that as written in the December 2019 back evaluation, lumbar spine degenerative disc disease was less likely than not related to service as this condition as diagnosed several years after service and was due to normal progression of aging process. To separate symptoms between service-connected lumbar spasm and non-service-connected lumbar spine degenerative disc disease was not possible as both conditions were able to cause severe pain at the lumbar spine and decreased range of motion of the lumbar spine. The Board finds this opinion inadequate because although the September 2020 examiner said that the Veteran’s private June 2010 evaluation showed extension and lateral bending (lateral flexion) more decreased in comparison with all the VA back examinations in 2009, 2017, and 2019 in providing the rationale, the examiner did not address the fact that the June 2010 private evaluation showed flexion to 30 degrees and the December 2019 VA examination showed flexion to 30 degrees. This would suggest that perhaps the Veteran’s back condition was worse from at least 2010 to 2017, which would support a 20 percent disability rating, when the April 2017 VA examination showed flexion to 60 degrees. However, VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Therefore, on remand, an additional VA opinion should be obtained to specifically discuss the findings of flexion to 30 degrees in the June 2010 private evaluation and flexion to 30 degrees in the December 2019 VA examination. The examiner should determine whether this is evidence of a more severe back condition despite the intermediate April 2017 VA examination findings of flexion to 60 degrees. 2. Entitlement to an effective date prior to January 13, 2017, for a 20 percent disability rating for lumbar muscle spasm claimed as back injury (back condition) is remanded. The issue of an effective date prior to January 13, 2017, for a 20 percent disability rating for the service-connected back condition is inextricably intertwined with the increased rating claim. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a retroactive VA opinion from an appropriate examiner to determine the severity of the Veteran’s back condition from November 4, 2008, to January 13, 2017. The claims file and a copy of this remand must be made available for review. (Continued on the next page)   A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran’s lay statements. The examiner must also consider and discuss the findings of flexion to 30 degrees in the June 2010 private treatment record, and the finding of flexion to 30 degrees in the December 2019 VA examination, despite the findings of flexion to 90 degrees and flexion to 60 degrees at the July 2009 and April 2017 VA examinations, respectively. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make a determination, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.