Citation Nr: 21062838 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-09 508 DATE: October 12, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to July 26, 2019 for degenerative arthritis with spinal stenosis and intervertebral disc syndrome (IVDS) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1988 to January 1992. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2020. A transcript of that hearing is of record. The appeal was last before the Board in September 2020, when the Veteran's claim for entitlement to a rating in excess of 20 percent prior to July 26, 2019 was denied and a rating of 60 percent from July 26, 2019 was granted. The Veteran appealed the Board's decision, in part, to the United States Court of Appeals for Veterans Claims (Court). By Order dated May 2021, the Court vacated that portion of the Board's September 2020 decision that denied a rating in excess of 20 percent prior to July 26, 2019 for degenerative arthritis with spinal stenosis and intervertebral disc syndrome (IVDS) and remanded the matter to the Board for compliance with the instructions included in the May 2021 Joint Motion for Remand (JMR) by the parties. The grant of a rating of 60 percent from July 26, 2019 was not disturbed and is no longer on appeal. Entitlement to a rating in excess of 20 percent prior to July 26, 2019 for degenerative arthritis with spinal stenosis and intervertebral disc syndrome (IVDS) Per the May 2021 JMR, the Parties agreed that the Board erred when it failed to ensure that the VA obtain an adequate medical opinion addressing functional loss or additional loss due to flare-ups and repetitive use over time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). According to the JMR, the October 2016 VA examiner and the June 2017 VA examiner failed to provide evidence regarding the Veteran's pain on range of motion. Regarding limitation of motion during a flare-up or following repeated use, the JMR specifically highlighted Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), stating that before an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss during flare-ups. Therefore, consistent with the May 2021 JMR, the Board finds that a remand is necessary for the Veteran's increased rating claim for his service-connected back disability in order to obtain a retrospective medical opinion that more adequately addresses the requirements laid out in DeLuca, as well as Sharp. The matters are REMANDED for the following action: 1. Associate all outstanding VA and/or private treatment records with the Veteran's claims file. Provide the Veteran's electronic claims file to an appropriate examiner for a retrospective opinion on the severity and level of loss of function of the Veteran's spinal stenosis and intervertebral disc syndrome of the lumbar spine prior to July 26, 2019 base on the observations and reports of the Veteran in the VA examinations in October 2016 and June 2017, a disability benefits questionnaire from a private physician in June 2017, in any relevant outpatient treatment records prior to July 2019. The examiner should consider the Veteran description of the flare-ups he experienced, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experienced during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited back forward flexion, backward extension, left and right lateral flexion, and left and right rotation caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. The examiner should also consider the evidence in the July 2019 VA examination that found that an increase in symptoms began prior to that date because the Veteran reported episodes of bed rest of a duration of at least six weeks during the previous twelve months. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.