Citation Nr: 21004426 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 09-04 824 DATE: January 27, 2021 REMANDED A rating in excess of 20 percent from April 2, 2009 to June 7, 2016 for thoracolumbar strain with muscle spasms, lumbar degenerative joint disease (DJD), and intervertebral disc syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, in July 2015 the Board denied a disability rating in excess of 10 percent for the Veteran’s back condition. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2016, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s July 2015 decision and remanding the case for compliance with the terms of the JMPR. In July 2016, the Board again remanded the matter for further development consistent with the terms of the JMPR. The RO then granted an evaluation of 40 percent from June 8, 2016 to August 31, 2016, and 20 percent thereafter. In April 2017, the Board denied increased ratings for the Veteran’s back condition in excess of 10 percent from May 15, 2007, to April 1, 2009, in excess of 40 percent from June 8, 2016 to August 31, 2016, and in excess of 20 percent from September 1, 2016. The issue a rating in excess of 10 percent from April 2, 2009, to June 7, 2016, was remanded for a VA opinion, and was again remanded in June 2019. In June 2020, the RO granted an increased rating of 20 percent for the Veteran’s back condition for the period from April 2, 2009 to June 7, 2016. In August 2020, the Board remanded the issue of a rating in excess of 20 percent for the period from April 2, 2009 to June 7, 2016 for further development. The issue is now before the undersigned. The Board finds that further development is needed before it can proceed with adjudication. As stated above, the Board remanded this matter in August 2020 for further development. However, remand is again needed to comply with the August 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In particular, the Board notes that the prior remand found that a November 2019 VA opinion was internally inconsistent and lacked a thorough rationale, and as such, remand was required to determine whether the Veteran’s lumbar scoliosis was due to severe muscle spasms or guarding caused by his service-connected back condition. The November 2019 VA medical opinion found that the Veteran had muscle spasms and guarding. The examiner opined that the Veteran’s mild levoconvex curvature was most likely due to his muscle spasm. The examiner noted that scoliosis can come and go with muscle spasms and over the years the Veteran’s records note that his muscle spasms come and go along with his levoscoliosis. The examiner also opined that the Veteran’s lumbar scoliosis and muscle spasm are at least as likely as not due to the Veteran’s service-connected back condition. Pursuant to the Board remand, an addendum VA opinion was provided in September 2020. However, this opinion does not acknowledge or consider the November 2019 examiner’s statements regarding the relationship between the Veteran’s mild levoconvex curvature and his muscle spasm, the intermittency of the Veteran’s muscle spasms and levoscoliosis, and the relationship between the Veteran’s lumbar scoliosis and muscle spasm due to his service-connected back condition. As such, remand for an addendum opinion is required. The matters are REMANDED for the following action: 1. The AOJ should obtain updated VA and non-VA treatment records. 2. The AOJ should arrange for an addendum VA medical opinion from the examiner who provided the September 2020 opinion, or if unavailable, another qualified clinician, to determine the nature and likely cause of the Veteran’s abnormal spinal contour noted in the April 2009 x-ray and September 2016 and November 2019 VA examinations. Schedule the Veteran for an examination or telehealth interview of the Veteran only if deemed necessary by a medical professional. The examiner should review the claims file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) During the period on appeal, did the Veteran have muscle spasms severe enough to result in abnormal gait? The examiner must consider and discuss the November 2019 examiner’s statement that spasms are reported in some treatment records. (b.) During the period on appeal, did the Veteran have muscle spasms severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis? The examiner must consider and discuss the November 2019 examiner’s statement that spasms are reported in some treatment records. (c.) During the period on appeal, did the Veteran have guarding severe enough to result in abnormal gait? (d.) During the period on appeal, did the Veteran have guarding severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis? (e.) Is it at least as likely as not (50 percent probability or greater) that the “[n]ew mild levoconvex curvature” noted in the April 2009 x-ray is due to severe muscle spasms caused by the Veteran’s service-connected low back condition? The examiner must consider and discuss the November 2019 examiner’s opinion that the new mild levoconvex curvature is most likely due to muscle spasms. (f.) Is it at least as likely as not (50 percent probability or greater) that the “[n]ew mild levoconvex curvature” noted in the April 2009 x-ray is due to guarding caused by the Veteran’s service-connected low back condition? (g.) Is it at least as likely as not (50 percent probability of greater) that the lumbar scoliosis noted in the September 2016 VA examination is due to severe muscle spasms caused by the Veteran’s service-connected low back condition? The examiner must consider and discuss the November 2019 examiner’s opinion that the Veteran’s lumbar scoliosis and muscle spasm are at least as likely as not due to the Veteran’s service-connected lumbar DDD/DJD, strain, and radiculopathy. (h.) Is it at least as likely as not (50 percent probability of greater) that the lumbar scoliosis noted in the September 2016 VA examination is due to guarding caused by the Veteran’s service-connected low back condition? (Continued on the next page)   The examiner must consider and discuss the November 2019 examiner’s statements regarding the relationship between the Veteran’s mild levoconvex curvature and his muscle spasm, the intermittency of the Veteran’s muscle spasms and levoscoliosis, and the relationship between the Veteran’s lumbar scoliosis and muscle spasm and his service-connected back condition. A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.