Citation Nr: 21003299 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-22 963A DATE: January 21, 2021 REMANDED Entitlement to a higher initial rating for degenerative disc disease, degenerative joint disease, and spinal stenosis of the lumbar spine, rated as 10 percent disabling from November 3, 1988, through May 31, 2009; as 20 percent disabling from June 1, 2009, through November 17, 2019; and as 40 percent disabling on and after November 18, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1976 to November 1988. This matter comes before the Board on appeal from a February 2008 Regional Office (RO) rating decision. In May 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This claim was previously denied by the Board in October 2017, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the parties submitted a Joint Motion for Remand requesting that the issue be vacated and remanded for compliance with the terms of the Joint Motion. The Court granted this motion in a July 2018 Order, and the case was returned to the Board for further adjudication. In January 2019, the Board remanded this case for development consistent with the terms of the Joint Motion. The case has now been returned to the Board. The Board notes that the appeals period in this claim begins on November 3, 1988, and extends through the present. 1. Entitlement to a higher initial rating for degenerative disc disease, degenerative joint disease, and spinal stenosis of the lumbar spine, rated as 10 percent disabling from November 3, 1988, through May 31, 2009; as 20 percent disabling from June 1, 2009, through November 17, 2019; and as 40 percent disabling on and after November 18, 2019, is remanded. The Board remanded this claim in January 2019 to obtain a medical opinion that addresses deficiencies that were identified by the parties in the June 2018 Joint Motion. In October 2019, a VA examiner attempted to answer a question concerning whether he could estimate the degree at which range of motion pain began at the time of the February 2008 VA examination. He responded to this question by noting that the requested information “cannot be provided because recent exam by VES on 08/08/2018 [states] that veteran is ‘unwilling to participate in ROM testing today due to reported pain. Painful movement in all planes is noted when the veteran is not being specifically asked about ROM.’” The October 2019 VA examiner has cited a lack of range of motion measurements on the most recent VA examination as a basis for being unable to answer the questions that were posed in the January 2019 Board remand. The Board notes that the Veteran underwent a new VA examination at which he was able to participate in range of motion testing in November 2019. This examination was not conducted by the same examiner who attempted to answer the Board’s January 2019 remand instructions. The November 2019 VA examiner either was not provided with or did not attempt to answer the Board’s January 2019 questions. Given that the record now contains recent range of motion measurements, information that was cited by the October 2019 VA examiner as a basis for being unable to provide the requested opinion, the Board finds it necessary to remand this claim so that all of the questions that were posed by the Board in its January 2019 remand may be addressed. As discussed in the January 2019 Board remand, the June 2018 Joint Motion directed attention to VA examinations dated in February 2008, November 2013, and April 2017. It raised the following general objections to these examination reports: The Joint Motion stated that “the Board did not adequately address whether these examinations were adequate for rating purpose, to include whether the examinations sufficiently addressed the other relevant factors, such as pain, weakness, incoordination, and/or fatigability resulted in decreased functional loss” under 38 C.F.R. § 4.45. It also noted that “38 C.F.R. § 4.40 permits entitlement to a higher disability evaluation where there is evidence that his disability caused functional loss, which is ‘the inability… to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance.’” It further noted that “loss of motion during flare-ups can satisfy the loss of motion necessary for a particular rating.” With respect to the February 2008 VA examination report, the Joint Motion noted that the February 2008 VA examination report had noted that the Veteran “had pain and stiffness on rising from a seated position and ‘experience[d] a constant dull ache … with increased pain with prolonged standing, walking, prolonged positioning, bending, and lifting,’” and that there was “‘evidence of pain on motion,’ but did not indicate where in the range of motion pain began.” [Internal citations omitted.] With respect to the November 2013 VA examination report, it noted that “[t]he November 2013 VA examination report noted flare-ups ‘15 days per year in[]which he is unable to go to work,’ but the examiner concluded that any determination of additional limitations would require her to resort to speculation because Appellant was not being examined during a flare-up.” With respect to the April 2017 VA examination report, it noted that the Veteran reported functional impairment consisting of: “progressively worse pain in low back” that is aggravated by “twisting back, lifting trays of mail, bending in any direction;” and though there is some relief with “being still,” prolonged sitting also aggravated the pain. The examiner reported there was “pain noted on exam[ination] [that] causes functional loss,” but the examiner did not note where in the range of motion pain set in. The Joint Motion also directed the Board to address the Veteran’s contention “that he is entitled to referral for an extraschedular rating for his service-connected lumbar spine (based on the evidence of record, namely, his use of a cane and brace).” The Board further notes that the period for consideration in this appeal begins on November 3, 1988. The Veteran was in receipt of a 10 percent rating from November 3, 1988, through May 31, 2009. He was in receipt of a 20 percent rating from June 1, 2009, through November 17, 2019. He has been in receipt of a 40 percent rating on and after November 18, 2019. The August 2020 supplemental statement of the case only addresses the period beginning on June 1, 2009. That is, it does not address the period from November 3, 1988, through May 31, 2009, for which the Veteran is currently in receipt of a 10 percent rating. No other statement of the case has been issued following the Board’s January 2019 remand, and none of the rating decisions that have been issued since the January 2019 Board remand has addressed that period. On remand, the RO must readjudicate the entire appeals period, including the period from November 3, 1988, through May 31, 2009. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained. 2. Following completion of the above, obtain a retrospective medical opinion from an appropriate clinician regarding the severity of the Veteran’s service-connected low back disability. The relevant documents in the record should be made available to the examiner. In particular, the examiner should review the February 2008, November 2013, April 2017 VA, August 2018, and November 2019 VA examination reports of record together with all other evidence pertaining to the severity of the Veteran’s low back disability from November 3, 1988, to the present. The examiner should render, if possible to do so without resorting to mere speculation, a retrospective opinion that estimates the following: i. the additional functional impairment (in terms of the degree of additional range of motion loss) due to factors such as pain, weakness, incoordination, fatigability, and/or pain on motion at each time the low back disability was previously examined with documented range of motion testing for VA rating purposes (in February 2008, November 2013, and April 2017). (“Functional loss” is defined as ‘the inability… to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance.’”) If an opinion with such estimations cannot be provided, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. ii. Whether there was evidence that the Veteran’s disability caused additional functional impairment during flare-ups (in terms of the degree of additional range of motion loss) at each time the low back disability was previously examined with documented range of motion testing for VA rating purposes (in February 2008, November 2013, and April 2017). If an opinion with such estimations cannot be provided, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. iii. The February 2008 VA examination report notes that the Veteran “had pain and stiffness on rising from a seated position and ‘experience[d] a constant dull ache … with increased pain with prolonged standing, walking, prolonged positioning, bending, and lifting.’” It also noted that there was “‘evidence of pain on motion,’ but did not indicate where in the range of motion pain began.” Please determine, to the extent that is practically possible, the degree at which range of motion pain began. If an opinion with such estimations cannot be provided, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. iv. The November 2013 VA examination report notes that flare-ups occur 15 days per year and that the Veteran is unable to go to work on those days. The examiner concluded that any determination of additional limitations would require her to resort to speculation because the Veteran was not being examined during a flare-up. Please determine whether a retrospective opinion can be provided that estimates the additional limitations of motion in terms of degrees lost based on alternative evidence (i.e., relevant information elicited from the Veteran, review of the file, and the examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares). If an opinion with such estimations cannot be provided, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. v. The April 2017 VA examination report notes that the Veteran reported functional impairment consisting of progressively worse pain in the low back that is aggravated by twisting, lifting trays of mail, bending in any direction, and prolonged sitting and that there is some relief with “being still.” The examiner reported that pain that causes functional loss was noted on examination, but the examiner did not note where in the range of motion pain set in. Please determine, to the extent that is practically possible, the degree at which range of motion pain began. If an opinion with such estimations cannot be provided, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. 3. After the development requested above has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the claim of entitlement to a higher initial rating for a low back disability, currently rated as 10 percent disabling from November 3, 1988, through May 31, 2009; as 20 percent disabling from June 1, 2009, through November 17, 2019; and as 40 percent disabling on and after November 18, 2019. The RO should determine whether the requirements for referral to the Director of Compensation Service have been invoked under 38 C.F.R. § 3.321(b)(1) at any time during this appeal (from November 3, 1988, to the present). In particular, the Veteran contends that consideration of an extraschedular rating is warranted based on the evidence of record, namely, his use of a cane and brace. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.