Citation Nr: 21068848 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 14-44 039 DATE: November 15, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to November 21, 2016, for lumbosacral strain is remanded. Entitlement to a rating in excess of 40 percent on and after November 21, 2016, for lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to September 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in August 2018, September 2020, and March 2021. REASONS FOR REMAND 1. For the period of appeal prior to November 21, 2016, entitlement to a disability rating in excess of 20 percent for a back disability is remanded. 2. For the period of appeal from November 21, 2016, entitlement to a disability rating in excess of 40 percent for a back disability is remanded. During this period of appeal, the Veteran attended VA examinations in November 2016, January 2020, and August 2021. The RO also obtained an addendum opinion in November 2020. At the November 2016 VA examination the Veteran reported that his pain was rated at a 4/10 which could increase in the mornings, and that his pain was precipitated when sleeping or when exercising. He also reported that he was unable to bend or lift weights when having flare-ups. A physical examination at that time revealed forward flexion to 55 degrees, extension, flexion, and rotation were all limited to 20 degrees, with no additional functional loss due to pain or repetitive use, and no evidence of pain with weight bearing. Guarding and muscle spasms were present which did not result in abnormal gait or abnormal spinal contour. Muscle strength testing, reflexes, and sensory exam were normal, and no atrophy was present. No radiculopathy, ankylosis, IVDS, or other neurologic abnormalities were present. At the January 2020 VA examination, the Veteran reported flare ups weekly when his pain is rated as 9/10, which he reported causes him loss of ambulation and standing tolerance. On range of motion testing, forward flexion was limited to 25 degrees and extension was limited to 15 degrees. Flexion and rotation were limited to 10 degrees with pain on forward flexion and extension. The Veteran also reported loss of ambulation and standing tolerance. There was no additional functional loss after observed repetitive use. The examiner did not describe additional functional loss on repetitive use over time or during flare ups. There was guarding and muscle spasms which did not result in abnormal gait or abnormal spinal contour. Muscle strength testing, reflexes, and the sensory examination were normal. There was no atrophy, radiculopathy, ankylosis, IVDS, or other neurologic abnormalities. At the August 2021 VA examination, the Veteran reported peristent low back pain, which worsened with repetitive bending, heavy lifting, playing sports, and physical exertion. On range of motion testing, forward flexion was limited to 25 degrees and extension was limited to 10 degrees. Right later flexion was limited to 15 degrees and left lateral flexion was limited to 25 degrees. Left and right lateral rotation were limited to 10 degrees with pain on all measurements. There was no additional functional loss after observed repetitive use or repeated use over time. Mild tenderness to palpitation along the spine which resulted in no additional functional loss or abnormal spinal contour was reported, but no guarding or muscle spasms were reported. Muscle strength testing, reflexes, and the sensory examination were normal. There was no atrophy, radiculopathy, ankylosis, IVDS, or other neurologic abnormalities. For the period prior to November 21, 2016, the Veteran is rated at 20 percent for his back disability. The Veteran underwent a VA examination in June 2012 which did not comply with the requirements in Correia as the examinations did not contain passive range of motion measurements or pain on weight-bearing testing and Sharp since the examiner did not offer an opinion estimating the limitation of function during a flare up using lay statements from the Veteran or explain why such an opinion cannot be offered. See Correia v. McDonald, 28 Vet. App. 158 (2016); see also Sharp v. Shulkin, 29Vet. App.26 (2017); DeLuca v. Brown, 8Vet. App.202 (1995). As the VA examinations do not comply with the requirements of Correia and Sharp, the RO obtain a should request a retrospective opinion related to the severity of the Veteran's lumbosacral strain which complies with the requirements of Correia and Sharp for the period prior to November 21, 2016. Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). For the period beginning November 21, 2016, the Veteran indicated that he was unable to bend his spine during flare-ups at a November 2016 VA examination. For this period, the Veteran has a 40 percent rating and may receive a 50 percent rating for "unfavorable ankylosis" of the thoracolumbar spine. 38 C.F.R. § 4.71a. After the Board's March 2021 remand, the U.S. Court of Appeals for Veterans Claims issued a ruling that a finding of ankylosis may be supported by evidence of symptoms functionally equivalent to ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021) (citations omitted). These symptoms may be established by the same evidence for painful motion and flare-ups as described in Correia and Sharp, above. Id. The examinations performed during this latter period are not sufficient to describe the Veteran's disability to make a determination as to whether the Veteran's lumbosacral strain's functional effects are analogous to "unfavorable ankylosis." The Board remands for an adequate opinion on this issue. The matters are REMANDED for the following action: Obtain an addendum opinion from a qualified clinician. The examiner should be asked to provide a retrospective opinion and comment as to whether the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups can be estimated for the period prior to November 21, 2016 for the Veteran's back disability or whether the Veteran's back disability results in functional impairment analogous to unfavorable ankylosis on and after November 21, 2016. If such an opinion cannot be offered without an examination of the Veteran, an examination should be afforded. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.