Citation Nr: 21066274 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 19-36 385 DATE: October 29, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD), L4-5, L5-S1, with lumbar fusion and microdiscectomy ("back disability"), is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in January 2019. The appellant is his surviving spouse, who has been properly substituted in the appeal. By way of history, the Board denied entitlement to an increased rating for the Veteran's service-connected back disability and granted a separate rating for left lower extremity radiculopathy in March 2020. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. In May 2021, the Board remanded the case for additional development. The matters have since been returned to the Board for further appellate action. Pursuant to the May 2021 Board remand, the RO obtained a retrospective VA medical opinion in August 2021. The examiner noted that the Veteran experienced back pain with bending over and prolonged walking or sitting. The examiner added that the Veteran had flare-ups of back pain and left lower extremity radiculopathy, reportedly estimated at 6/10 or 8/10. However, the examiner could not find more specific information documented or that could be obtained due to the Veteran's death. The Board finds that the development conducted does not adequately comply with the remand directives. Specifically, the August 2021 VA examiner did not express an opinion regarding functional impairment and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the Court in Sharp noted that an examiner may not decline to provide an opinion based on speculation unless the examiner has considered all procurable and assembled data and offered a basis for that conclusion, and it must be apparent that the inability to provide an opinion without speculation reflects the limitation of knowledge in the medical community at large, as opposed to a limitation of the individual. The matters are REMANDED for the following action: Return the claims file to a VA examiner with sufficient expertise for a retrospective medical opinion regarding the level of severity of all impairment resulting from the Veteran's service-connected DDD, L4-5, L5-S1, with lumbar fusion and microdiscectomy, and radiculopathy, left lower extremity, prior to the Veteran's death in January 2019. In rendering the requested opinion, the examiner should specifically address the Veteran's back and left lower extremity flare-ups, including any range of motion degree estimates related to back flare-ups, if possible. The claims file must be made available to and be reviewed by the examiner, to specifically include the April 2016 VA examination report and VA treatment notes dated September 12, 2016, and May 28, 2013, showing back flare-ups and left radicular leg pain. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.