Citation Nr: 21066025 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-19 556 DATE: October 28, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected lumbar degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS), prior to January 13, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1983 to June 2004. The matter of entitlement to a higher disability rating for lumbar DJD with IVDS arises before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In an October 2018 decision, the Board, in pertinent part, denied a rating in excess of 20 percent for the period prior to January 13, 2015 for the Veteran's lumbar spine DJD with IVDS. In addition, the Board granted a higher 40 percent rating, effective March 1, 2015. The Veteran appealed the October 2018 denial to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2020 memorandum decision, the Court vacated the part of the Board's October 2018 decision that denied entitlement to a 20 percent rating in excess of 20 percent for the Veteran's lumbar spine DJD with IVDS prior to January 2015 and remanded the matter to the Board for readjudication. The Court also found that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was not reasonably raised by the record. 1. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar DJD with IVDS, prior to January 13, 2015, is remanded. In its July 2020 memorandum decision, the Court found that the Board erred by failing to provide adequate reasons and bases to support its determination that the VA examination on which the Board's denial was based is adequate, contrary to the contention of the Veteran. Specifically, the Veteran asserts that the clinician who conducted the February 2014 VA back examination did not administer range-of-motion testing in compliance with the holding in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), as it pertains to the application of 38 C.F.R. § 4.59 (specifying that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint."). The Veteran maintains that the examination in question is inadequate because, in part, "the examiner only performed two range-of-motion tests, an initial test and a test after repetitive motion." On the other hand, the Secretary noted that, although the spine disability is a joint disability, a "spine range of motion test cannot be performed in a non-weight-bearing position" and that "a VA spinal examination guide recommends performing range-of-motion tests of the spine in a standing position." Regarding the adequacy of the February 2014 examination, the Court acknowledged that rendering a conclusion on whether the appropriate range of motion testing was conducted is a medical question that the Court cannot answer. The Court further noted that the Board failed to explain its reasons for relying on the examiner's conclusion that additional loss of range of motion during flare-ups of the back disability would be "approximately 5 degree[s] in all directions," despite the examiner's lack of explanation for making such a determination. Upon further review of the evidentiary record, especially the findings of the February 2014 VA examination, and in light of the above, the Board finds the February 2014 medical examination and opinion to be inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to provide an examination, it must provide one that is adequate for purposes of the determination being made). Thus, a remand is necessary to obtain a retrospective medical opinion concerning the adequacy of the range of motion testing, as well as the extent of additional loss of range of motion during flare-ups of the Veteran's back disability, so the Board can render a well-informed decision on the merits of the appeal. Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008). Accordingly, the matters are REMANDED for the following action: 1. Send the Veteran's claims file to a physician (M.D.) of appropriate expertise for review and to provide the requested opinions. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND. Thereafter, the examiner is asked to address the following: 2. Provide an opinion as to whether the February 2014 range of motion testing of the Veteran's back was conducted in compliance with Correia, specifically, whether the evaluation adequately tested and reported findings concerning pain on both active and passive motion, in weight-bearing and nonweight-bearing, to the extent possible. The examiner is asked to support his or her conclusion with a well-reasoned rationale. 3. If the examiner determines that the February 2014 range of motion testing was inadequate, the examiner is asked to provide a retrospective medical opinion, as best as can be ascertained from medical reports and other contemporary evidence of record, in compliance with Correia. If the examiner cannot provide an opinion 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 (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Provide a retrospective medical opinion, as best as can be ascertained from medical reports and other contemporary evidence of record, estimating any additional degrees of limitation of range of motion and functional loss caused by flare-ups or after repeated use of the Veteran's back disability, prior to January 13, 2015. In particular, the examiner must review the February 2014 VA examination report and based on the information therein, provide the requested findings. The examiner is requested to address the examiner's conclusion that additional loss of range of motion during flare-ups would be "approximately 5 degrees[s] in all directions, and provide a rationale to support such finding. (Continued on the next page) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.