Citation Nr: 21062557 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 09-20 130 DATE: October 8, 2021 REMANDED 1. Entitlement to an initial disability rating for chronic orthopedic manifestations of lumbar spine anterolistheses of L4-S1 with facet degenerative changes of L3-L4 thru L5-S1 (lumbar spine disability) in excess of 10 percent prior to December 18, 2008, in excess of 20 percent from December 18, 2008 through February 24, 2014, and in excess of 20 percent from June 26, 2015, is remanded. 2. Entitlement to an initial disability rating for left lower extremity radiculopathy in excess of 10 percent. 3. Entitlement to an initial disability rating for right lower extremity radiculopathy in excess of 10 percent. 4. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1971 to July 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision. These matters were previously denied by the Board in a July 2019 decision, which also adjudicated increased rating claims for radiculopathy in the Veteran's lower extremities. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In October 2020, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Partial Remand (Joint Motion), relating only to the issues addressed herein, which vacated and remanded the findings of the July 2019 Board decision for further development and readjudication. The Joint Motion was granted by the Court the following week. Specifically, within the Joint Motion, the parties stated that the Board erred by relying on an inadequate March 2018 retrospective assessment, stating that an opinion as to range of motion testing and weight-bearing/nonweight-bearing testing at the time of prior 2008 and 2015 VA examinations could not be provided because the examiner was not present during the previous examinations and the Veteran's condition had since worsened. The parties indicated that neither the examiner nor the Board explained "why the fact that Appellant's disability had increased since the August 2008 VA examination prevented the examiner from opining about the state of Appellant's disability at the time of the August 2008 VA examination, based on the data provided in that examination and up to that point." Thus, the parties agreed that remand was warranted for the period prior to December 2008 to provide a new retrospective examination with an adequate rationale and explanation. For the period from December 2008 to February 2014, the parties agreed that remand was warranted because the Board made conclusory findings without adequate discussion of relevant evidence. For the period from June 2015 to present, the parties agreed that remand was warranted due to the Board's reliance on three, inadequate VA examination from 2015, 2017, and 2018. A June 2015 VA examination was found to be inadequate for failure to comply with Correia v. McDonald, because it did not contain range of motion testing for passive and active motion and weight-bearing/nonweight-bearing. 28 Vet. App. 158 (2016). Additionally, the parties found the examination was not compliant with Mitchell v. Shinseki, because, while the examiner indicated pain with range of motion, the examiner did not state where in the range of motion the pain began. 25 Vet. App. 32 (2011). Furthermore, while the examiner stated that the examination was not done during a flare-up, the examiner offered no estimation as to further functional impact by such flare-ups, nor provided an adequate explanation as to why one could not be provided. A May 2017 VA examination was found to be inadequate for failure to provide an assessment of the impact of repeated use over time or flare-ups and for failure to comply with Mitchell. A March 2018 VA examination was also found to be inadequate for failure to comply with Correia and Mitchell. Additionally, the parties agreed that the issue of entitlement to a TDIU rating was inextricably intertwined with the Veteran's increased rating claim for the service-connected lumbar spine disability and, therefore, also requires remand. Accordingly, remand is necessary for development consistent with the Joint Motion. The matters are REMANDED for the following action: 1. Refer the claims file to an appropriate clinician to provide a retrospective opinion relating to the Veteran's lumbar spine disability. The clinician should review the file and be provided with a copy of the facts below. If the examiner believes that an in-person examination is needed to provide an informed opinion, then schedule an examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran underwent a VA examination for assessment of his lumbar spine disability in August 2008. However, the examiner did not record range of motion measurements during active motion, passive motion, weight-bearing, and nonweight-bearing. See VBMS entry with document type, "VA Examination," receipt date 08/19/2008. The Veteran underwent another VA examination for assessment of his lumbar spine disability in June 2015. This examination also did not contain range of motion testing for passive and active motion and weight-bearing/nonweight-bearing. Additionally, while the examiner indicated pain with range of motion, he did not state where in the range of motion the pain began. Additionally, the examiner stated that the examination was not done during a flare-up but offered no estimation as to further functional impact by such flare-ups, nor provided an adequate explanation as to why one could not be provided. See VBMS entry with document type, "C&P Exam," receipt date 06/29/2015, with "DBQ MUSC Back" in the subject field. The Veteran underwent another VA examination in May 2017. The examiner did not provide an assessment of the impact of repeated use over time or flare-ups. Additionally, the examiner did not address the issue of where the Veteran began to experience pain on range of motion. See VBMS entry with document type, "C&P Exam," receipt date 05/25/2017, with "DBQ MUSC Back" in the subject field. In November 2017, the Board requested that a medical professional provide a retrospective opinion, seeking the examiner to comment on whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing could be estimated at the time of the August 2008 and June 2015 VA examinations. See VBMS entry with document type, "BVA Decision," receipt date 11/17/2017. The Veteran underwent another VA examination in March 2018. Although pain was noted on motion and during passive and nonweight-bearing testing, the examiner did not explain where in the range of motion the pain began. See VBMS entry with document type, "C&P Exam," receipt date 03/15/2018, with "#1" in the subject field. The March 2018 VA examiner also provided a retrospective assessment, pursuant to the November 2017 remand, stating, "This medical examiner cannot give a retrospective opinion for ROM, weight-bearing or non-weight-bearing for either August 2008 nor June 2015 examinations, as Veteran reports his condition has worsened since 5/2017 examination and this medical examiner was not present during the August 2008/June 2015 examinations." See VBMS entry with document type "C&P Exam," receipt date 03/15/2018, with "#2" in the subject field. The clinician's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence The clinician is asked to comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the VA examinations conducted in August 2008 and June 2015 for the lumbar spine. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. If the clinician is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The clinician shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If the clinician is unable to provide a retrospective opinion, the examiner must explain why the evidence of record is not sufficient to allow the clinician to provide such an opinion. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.