Citation Nr: 21003953 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-09 336 DATE: January 25, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability for the entire period on appeal is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1998 to November 1998 and August 1999 to May 2006. In December 2018, the Board denied entitlement to a disability rating in excess of 20 percent for the Veteran’s lumbar spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Remand (Joint Motion), vacated the December 2018 decision, and remanded the appeal back to the Board. In the aforementioned Joint Motion, the parties determined that VA erred when the Board failed to address whether the Veteran is entitled to a disability rating in excess of 10 percent for the period prior to June 17, 2016. Specifically, the parties agreed that the Board needed to address entitlement to a disability rating in excess of 10 percent prior to June 17, 2016 and in excess of 20 percent beginning on June 17, 2016. The parties additionally found that the November 2010 VA examination was inadequate because the examiner did not quantify the degree of functional impairment during flare ups as required by Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In April 2020, the Board determined that a 20 percent disability rating was warranted for the Veteran’s lumbar spine disability from October 21, 2010 to June 17, 2016, and remanded the issue of entitlement to a disability rating in excess of 20 percent for the entire period on appeal for a lumbar spine disability. The matter was remanded, in relevant part, to obtain outstanding relevant medical records and a VA examination and opinion to address the severity of the Veteran’s lumbar spine disability, including retrospective opinions. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to increased ratings for the Veteran's lumbar spine disability. Another remand is required in order for the Board to make a fully informed decision and see that the Veteran is afforded every possible consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its April 2020 remand, the Board found that the Veteran’s November 2010, May 2015, and September 2018 VA examinations were inadequate for various reasons including, failing to address the Veteran’s functional impairment from flareups; noting that the Veteran’s back was mostly asymptomatic while also noting that the Veteran had pain on full flexion; failing to address the severity of the Veteran’s lumbar spine disability absent the ameliorative effects of medication, to include injections for pain; and stating that the Veteran did not experience flareups, which was inconsistent with the evidence of record and the Veteran’s statements. See April 2020 Board decision. The Board remanded this issue for another VA examination and opinion. The April 2020 remand contained the following relevant instructions: (b) Specifically interview the Veteran about the nature of any flare-ups, then assess this impairment during flare-ups. (c) Provide an opinion to address any functional loss in terms of additional degrees of limited motion of the Veteran’s lumbar spine, i.e., the extent of the Veteran’s pain-free motion if his pain was not ameliorated by his medication regimen for the entire period on appeal (October 21, 2010 to present).The examiner must review the entire claims file and address the Veteran’s use of all pain medications and steroid injections. The examiner must address the Veteran’s lay statements regarding his medication regimen. While the September 2020 VA examination complies with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), it does not comply with the remainder of the Board’s remand directives per Stegall. Specifically, the examiner was requested to provide retrospective opinions regarding the Veteran’s lumbar spine disability due partly to the lack of adequate prior VA examinations, however an opinion was not provided. Additionally, although the examiner noted the Veteran’s medication regimen, he did not discuss the severity of the Veteran’s lumbar spine disability absent the ameliorative effects of medication nor the Veteran’s lay statements regarding his medication regimen. Finally, in a February 2020 VA Form 21-4138, the Veteran stated that when he has flareups, “the pain starts to bother [him] between 3 and 8 degrees.” It does not appear that the examiner addressed the Veteran’s contention that his pain begins at less than 30 degrees. Therefore, upon remand an addendum opinion that specifically includes a retrospective opinion on the severity of Veteran’s lumbar spine disability during the relevant period on appeal (October 21, 2009 to the present), an opinion addressing the severity of the Veteran’s lumbar spine disability absent the ameliorative effects of medication and the Veteran’s lay statements regarding his medication regimen, and an opinion addressing the Veteran’s lay statements, including his contention that his pain begins at 3 to 8 degrees, is necessary. Further, the most recent VA medical records included in the Veteran’s claims file are from April 2020. Accordingly, updated treatment records must be obtained on remand. The matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran’s relevant private and VA treatment records (from April 2020) and associate them with the claims file. If such records are unavailable for any reason, this must be documented. 2. Obtain an addendum opinion from the September 2020 VA examiner (or other qualified VA examiner, if the September 2020 examiner is unavailable). The claims file, and a copy of this remand, should be made available to, and reviewed by, the examiner. The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. The examiner must provide the following: (a.) A retrospective opinion regarding the severity of the Veteran’s service-connected lumbar disability during the relevant period on appeal (October 21, 2009 to the present). (b.) An opinion addressing the severity of the Veteran’s lumbar spine disability absent the ameliorative effects of medication. In providing an opinion, the examiner must discuss the Veteran’s lay statements regarding his medication regimen. (c.) An opinion addressing the Veteran’s lay statements, including his contention that his pain begins at 3 to 8 degrees. The examiner also is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Richardson, 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.