Citation Nr: 21062671 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 05-08 819 DATE: October 8, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine with disc space narrowing at L4-L5 and wedging at T12-L1 (hereinafter low back disability) prior to November 5, 2005, and in excess of 40 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, inter alia, continued the 20 percent rating for the Veteran's low back disability. In a December 2005 Supplemental Statement of the Case (SSOC) the RO increased the rating to 40 percent, effective November 5, 2005. In May 2008, November 2010, June 2012, April 2015, and February 2016, the Board remanded the appeal for further evidentiary development. In a March 2017 decision, the Board denied the Veteran's claim for entitlement to a rating in excess of 20 percent prior to November 5, 2005, and in excess of 40 percent thereafter, for his low back disability. The Veteran appealed the March 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for remand (JMR). In February 2018, the Court granted the parties' motion, vacated the March 2017 Board decision, and remanded the matter for actions consistent with the JMR. The Board notes that the Veteran testified before a Veterans Law Judge (VLJ) in June 2007. In a letter sent in July 2018, the Board advised the Veteran that the VLJ who conducted the June 2007 hearing was no longer employed by the Board and offered him the option for another Board hearing. The Veteran did not respond within the requisite 30 days. Therefore, the Board proceeded with adjudication of the appeal as though the request for a hearing had been withdrawn. In September 2018, the Board remanded the claim for further development. This matter was most recently before the Board in November 2019. At that time, the Board again remanded the claim for further evidentiary development, to include a VA examination and retrospective opinion. The Board notes that the Veteran was scheduled for a tele-hearing on March 31, 2021. However, in March 2021, the Veteran notified the RO that he wished to withdraw the request for a Board hearing. Accordingly, the Board deems the hearing request withdrawn. 38 C.F.R. § 20.704(e). Entitlement to a rating in excess of 20 percent for a low back disability prior to November 5, 2005, and in excess of 40 percent thereafter, is remanded. The Veteran contends that his low back disability is more severe than currently rated. Pursuant to the Board's November 2019 remand instructions, the Veteran underwent a VA examination in January 2020. The Veteran described his current symptoms as the following: low back pain, stiffness, and numbness and tingling in the legs. The Veteran reported that he could stand 5 minutes and walk 40 feet. The examiner indicated that the Veteran did not report flare-ups; consequently, the flare-up portion of the examination report was left blank. In addition to examining the Veteran for the current severity of his low back disability, the Board asked the examiner to provide a retrospective opinion on the severity of his low back disability for the appeal period prior to November 5, 2005. After examination of the Veteran and review of the claims file, the examiner opined the following in pertinent part: The veteran[']s MRI in 2003 showed lumbar spondylitic changes most pronounced at L4-5 with degenerative desiccation and disc bulging noted. The veteran underwent epidural steroid injections and tried RFA ablation due to significant pain and limited range of motion. Rehab notes indicate the veteran had significant pain in June 2005 with coughing and sneezing and even laying down on his side. Tying his shoes made his pain significantly worse. Thus the veteran[']s pain and radiculopathy were significant. There is significantly limiting in that any range of motion more than 50 [degrees] of flexion[,] extension[,] rotation[,] or lateral flexion would cause significant amount of pain. [sic] The veteran was also noted to have antalgic gait and would have some mild incoordination because of this. His ability to stand and walk would be limited to less than 4 hours a day possibly even less. His ability to lift would be limited to less than 10 pounds at a time. This time I am unable to find significant evidence to show that there is Dr. prescribed bed rest consistent with IVDS. It is my opinion that Dr. prescribed bed rest for IVDS was not prescribed for this veteran and/or clearly documented in his medical records. The Board finds that the VA examination and retrospective opinion are inadequate. With regard to the VA examination, the examiner failed to address the Veteran's flare-ups. Although the examiner indicated that the Veteran did not report flare-ups, the Board notes that the claims file is replete with the Veteran's consistent reports of severe flare-ups in his low back. Additionally, the Board notes that the Veteran's representative has argued that repetitive use over time was also not properly assessed during the examination. Regarding the retrospective opinion, the examiner failed to provide range of motion measurements for active and passive motion, weight-bearing, and nonweight-bearing or provide an estimated degree of additional range of motion loss due to pain on use or during flare-ups, or state why such findings could not be provided, as directed in the Board's November 2019 remand instructions. Additionally, while the examiner determined that there was not significant evidence to show that there was doctor-prescribed bed rest consistent with IVDS, the examiner failed to indicate whether IVDS was present at any time during the period on appeal. While the Board greatly regrets further delay, remand is required for an additional VA examination and retrospective opinion for full compliance with the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the matter is REMANDED for the following action: 1. Afford the Veteran a VA examination from a different examiner to determine the current severity of his service-connected low back disability. Access to the Veteran's electronic VA claims file must be made available to the examiner for review in connection with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should test for both active and passive motion, as well as weight-bearing and non-weight bearing. The examiner should comment on the severity of any painful motion or weakness. If pain is noted, the point during range of motion at which pain begins and ends must be clearly indicated. The examiner should also provide range of motion measurements, including at what point in the arc of motion pain limits function both regularly and during any flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. The examiner should also provide range of motion measurements following repetitive use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups or repetitive use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). The examiner must also provide a retrospective opinion regarding the severity of the Veteran's low back disability prior to November 5, 2005. The examiner should provide estimated range of motion and repetitive motion findings in degrees for the low back in active and passive motion and weight-bearing and nonweight-bearing prior to November 5, 2005. Additionally, the examiner should opine retrospectively on any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors, by providing an estimated degree of additional range of motion loss due to pain on use or during flare-ups prior to November 5, 2005. If the examiner is unable to provide a retrospective opinion, he or she should clearly explain why that is so. The examiner should also indicate whether there is or has been at any time during the appeal period intervertebral disc syndrome (IVDS). If so, indicate whether there have been incapacitating episodes of such with doctor-prescribed bed rest, and their frequency and duration. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.