Citation Nr: 21061354 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 13-23 807 DATE: October 1, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to December 29, 2020, and in excess of 20 percent thereafter, for lumbosacral spine disorder with degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1981 to February 2002. This matter was last before the Board in April 2021, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a July 2021 supplemental statement of the case continuing the denial of the claim, the matter was returned to the Board for its adjudication. The Board remanded this matter previously in order to obtain a new examination to evaluate the severity of the back disability during the entirety of the appeal period. Specifically, the chosen examiner was directed to provide estimates of the additional loss of function during a flare-up of symptomatology and/or following repeated use, both currently and retrospectively. In a June 2021 examination report, the Veteran reported that he experienced constant back pain that was exacerbated by physical activity. He did not endorse experiencing any flare-ups of symptomatology when queried. Range of motion testing did not reveal any loss of range of motion, and furthermore no additional loss of range of motion was noted after repetitive use testing. Muscle and sensory testing revealed no abnormalities, and the examiner found no evidence of radiculopathy, ankylosis, or intervertebral disc syndrome. The examiner did not find that the back disability contributed to any impairment of occupational functioning. With regards to the extent of additional loss during a flare-up of symptomatology, the examiner stated that he had "no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up." See June 28, 2021 BVA Medical Opinion, Disability Benefits Questionnaire. The examiner further commented that any opinion as to whether flare-ups or repetitive use could significantly limit functional ability "is not one with literature support, but instead [is] based on clinical information including history and physical findings." Id. Unfortunately, the Board cannot rely on this VA examination report as the examiner did not comply with its prior remand instructions regarding the elicited opinion as to the extent of any additional loss of function. The Board specifically requested that the examiner set forth an estimate as to additional loss of function during a flare-up and/or following repetitive use, both currently and retrospectively. The remand instructions directed the chosen examiner to provide a thorough rationale if he or she was unable to provide such an opinion, to include discussion of whether the inability to do so was due to lack of knowledge among the medical community or based on the lack of procurable information. The June 2021 examiner did not provide any rationale for their inability to provide the requested opinion. Moreover, they did not discuss the extent of any functional loss retrospectively. Accordingly, remand is necessary in order to secure a new examination that complies with the Board's prior remand instructions, which are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Provide the claims file to the individual who administered the June 2021 VA back examination, or to another qualified medical professional if that individual is not available, in order to elicit an addendum opinion as to the extent that the Veteran experienced additional loss of function either during a flare-up of low back symptomatology or following repetitive use, both retrospectively for the period prior to December 29, 2020 and for the period from December 29, 2020. The entire claims file, to include a complete copy of this Remand, must be made available to the chosen examiner, and that individual must indicate that they reviewed the entire file prior to setting forth any opinion as to the likely etiology of the low back condition. The examiner must express an opinion whether, both prior to and from December 29, 2020, repeated use or flare-ups of symptomatology resulted in additional limits on functional ability, and, to the extent possible, must provide an estimate of the additional functional impairment during a flare-up, following repetitive use, or during a combination of the two. The examiner should opine as to any resultant loss in range of motion described in terms of degrees that would occur during a flare-up, following repetitive use, or during a combination of the two. If it is not possible to provide a specific measurement or even provide an estimate 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). It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.