Citation Nr: 21065035 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-30 241 DATE: October 22, 2021 REMANDED Entitlement to increases in the staged (10 percent prior to February 6, 2020 and 20 percent from that date) ratings assigned for thoracic spine (T10) compression fracture with degenerative arthritis and rib cage pain (a back and rib cage disability) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 2008 to April 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) rating decision. In June 2019, this matter was remanded for additional development. [In June 2019, the Board also remanded for further development the matter of service connection for a disability manifested by rib cage pain. The February 2020 VA examiner opined that the Veteran's rib cage pain was related to service (stating that the rib pain comes from the thoracic spine compression fracture). A July 2020 rating decision (granted service connection for the rib cage pain disability) and combined that matter with the thoracic spine compression fracture, rated 20 percent, effective February 6, 2020.]. Entitlement to increases in the staged (10 percent prior to February 6, 2020 and 20 percent from that date) ratings assigned for a back and rib cage disability is remanded. Upon review of the November 2014 and February 2020 VA examinations, the Board finds remand for a (current and retrospective) adequate medical advisory opinion in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017) is necessary. The November 2014 examiner stated: "It is not possible without mere speculation to estimate either loss of range of motion (ROM) or describe loss of function because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances." The February 2020 examiner indicated that the Veteran's forward flexion was to 60 degrees (at which point his pain was at 4/10 and did not want to flex further (guarding)); regarding flexion during flare-ups, she "believed that pain will not be less than was reported today." While both examiners noted complaints of flare-ups, they did not provide an adequate assessment (estimate the extent) of functional impairment during flare-ups. The Board is aware of the difficulty in providing an opinion [here, regarding severity of flare-ups] that in part requires some speculation, particularly when the Veteran is not experiencing a flare-up at the time of examination. Nonetheless, to comply with governing legal guidelines a medical opinion that addresses the estimated degree of severity of the back disability during flare-ups is necessary. While the Board's June 2019 remand directed use of a goniometer, the Board acknowledges that such use would bring accurate results when there is guarding or be helpful in providing estimates of impairment with flare-ups (which presumably would be based on the Veteran's self-reports of limitations at such times, and the provider's assessment of their reliability). Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is remanded for the following: Arrange for an orthopedic examination of the Veteran (with neurological consult if deemed necessary) to assess the severity of his back disability. The entire record (including the Veteran's statements regarding extent of impairment during flare-ups) must be reviewed by the consulting provider and addressed in the opinion offered. The examiner is asked to furnish a current and retrospective opinion regarding the functional loss from the Veteran's service-connected back disability that occurs during flare-ups and when the back is used repeatedly over a period of time. The examiner must note (elicit from the Veteran) a report of the frequency and duration of flare-ups, and description of the additional limitations he has at such times, and provide an estimate of the extent to which the back disability limits his functioning during flare-ups and with use. The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during a flare-up (including whether the functional limitation would be equivalent to ankylosis, and if so, the position of ankylosis). A goniometer should be used for current ROM testing. The provider should opine whether the Veteran's accounts may be relied upon for the estimate sought, and if not, explain why not. If an estimate of additional impairment during flare-ups cannot be provided based on the Veteran's reports and what is shown by clinical data in the record, there must be a full explanation why that is so. The examiner should also note whether there are any associated neurological symptoms (and if so, identify their nature and describe the extent of related functional impairment). If an opinion requested cannot be provided "without resort to mere speculation" there must be explanation why that is so. All opinions should include a complete rationale with citation to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.