Citation Nr: 21068530 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 13-33 777A DATE: November 10, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability from September 30, 2008 to October 23, 2017, excluding a period of convalescence from January 2, 2010 to June 1, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to June 1997. This matter comes before the Board of Veteran's Appeals (Board) from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2021 when the matter was remanded for development, following a Joint Motion for Remand (JMR) granted by the United States Court of Appeals for Veterans Claims (Court) in March 2021. The Board finds the July 2021 remand directives have not been substantially complied with, and the matter must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability from September 30, 2008 to October 23, 2017, excluding a period of convalescence from January 2, 2010 to June 1, 2010 is remanded. In July 2021, the Board remanded the appeal for a retrospective opinion addressing the Veteran's functional impairment as it related to his back disability for the appellate period from September 30, 2008 to October 23, 2017. In August 2021, a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (Back DBQ) was associated with the claims file. This examination report noted some of the Veteran's medical history as it pertained to his back disability, to include steroid injections, yearly ablations since 2012, and prescribed medication to control the pain- which the Veteran reported depends on his activity level. An abnormal initial range of motion was noted, with pain limiting his movement and mobility. Additionally, the examiner noted that the Veteran did not report flares of his condition. See Back DBQ of August 2021. The Board finds this Back DBQ does not substantially comply with the remand directives of July 2021. It is acknowledged that the examiner did note some medical evidence for the period prior to October 2017, however, no analysis or opinion as to the Veteran's functional impairment from September 30, 2008 to October 23, 2017 was rendered nor were any retrospective opinions or findings noted as to any additional functional impairment the Veteran may have experienced due to flares or following repetitive use; to include estimates of range of motion. Alternatively, no opinion by the examiner explaining their inability to provide the requested retrospective opinion was provided. Thus, the Board finds the Back DBQ of August 2021 did not substantially comply with the July 2021 remand directives, and the matter must be remanded for compliance with the previous directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the requested retrospective opinion may be a complex opinion to provide. Thus, in view of the possible complexity the retrospective opinion may pose, in addition to the Veteran's medical history, the Board requests the opinion be provided by a physician specializing in spinal disabilities or in orthopedic disabilities (physician skilled in spine-related disabilities). The retrospective opinion seeks to clarify whether the Veteran's back disability manifested with symptomatology that more closely approximates a disability rating in excess of 20 percent during the period from September 30, 2008 to October 23, 2017; to include consideration of any additional functional loss the Veteran may have experienced during this period of time due to flares or after repetitive use. If after a thorough analysis of the evidence, to include the lay statements of record, the medical records available in the claims file, and an interview with the Veteran regarding the symptomatology he experienced during this time period, the examiner concludes that he or she cannot make such a determination, the examiner is asked to explain the reason for such conclusion, to include whether additional information is needed or whether the inability to provide the opinion is due to having exhausted the limits of current medical knowledge. The matter is REMANDED for the following actions: 1. Comply with the July 2021 Board remand directives as to obtaining a retrospective opinion addressing the severity of the Veteran's lumbar spine disability for the period from September 30, 2008 to October 23, 2017, excluding a period of convalescence from January 2, 2010 to June 1, 2010. For ease of reference, the previous July 2021 directives are reproduced below: Schedule the Veteran for a VA orthopedic examination with a VA medical professional to retrospectively ascertain the severity of the Veteran's lumbar spine disability for the period from September 30, 2008 to October 23, 2017. All lumbosacral symptomatology associated experienced by the Veteran during this time period should be identified. In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must estimate the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing during the time period in question. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limited functional ability during flares or repetitive use, and, if so, the examiner must estimate what the range of motion was during flares or repetitive use. The examiner should specifically interview the Veteran about the nature of the flare-ups that he reported on the July2013 VA spine examination, and then assess this impairment during flare-ups and provide retroactive opinions as to any additional functional loss during flare-ups at that time and an estimate of that loss in terms of degrees reduction in range of motion. If the examiner cannot provide the above-requested opinions without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which, if obtained, would allow an opinion. The examiner shall review the entire claims file, to include all lay statements and include a copy of this REMAND in the examination report. All opinions and conclusions must be accompanied by a rationale. See July 2021 Board remand. a. In addition to the July 2021 remand directives reproduced above, the Board clarifies the following: The retrospective opinion must be provided by a physician specializing in spinal disabilities or in orthopedic disabilities (physician skilled in spine-related disabilities). (Continued on the next page) If after a thorough analysis of the evidence, to include the lay statements of record, the medical records available in the claims file, and an interview with the Veteran regarding the symptomatology he experienced during this time period, the examiner concludes that he or she cannot make such a determination, the examiner is asked to explain the reason for such conclusion, to include whether additional information is needed or whether the inability to provide the opinion is due to having exhausted the limits of current medical knowledge. 2. After completing the above requested action, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.