Citation Nr: 21069719 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-35 222A DATE: November 19, 2021 REMANDED Entitlement to a rating higher than 10 percent prior to November 13, 2014 for service connected lumbar spine disability is remanded. Entitlement to an effective date prior to November 13, 2014 for the 40 percent rating awarded for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the U.S. Air Force from October 1971 to October 1991. In October 2018, the Board issued a decision granting a 40 percent rating from November 13, 2014 and denying a rating higher than 10 percent prior for the Veteran's lumbar spine disability. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court.) Pursuant to a joint motion for remand (JMR), in January 2020, the Court vacated the October 2018 and remanded the appeal. In May 2020, the Board issued another decision continuing to deny a rating higher than 10 percent prior to November 13, 2014 and an effective date earlier than November 13, 2014 for the award of 40 percent rating for the lumbar spine. Again, the Veteran appealed the decision to the Court. In July 2021, pursuant to another JMR, the Court vacated the May 2020 decision and remanded the appeal once more. 1. Entitlement to a rating higher than 10 percent prior to November 13, 2014 for service-connected lumbar spine disability is remanded. 2. Entitlement to an effective date prior to November 13, 2014 for the 40 percent rating awarded for lumbar spine disability is remanded. As noted above, the Court vacated the October 2018 decision. The Board did not provide an adequate statement of reasons and bases by failing to discuss and explain whether a retrospective medical opinion was warranted and/or feasible to cure significant inadequacies in the November 2012 VA examination report, as well as arbitrarily assigning the November 13, 2014 effective date for the award of a 40 percent rating based on one treatment record. In its May 2020 decision, the Board again failed to comply with the Court's remand instructions and/or provide an adequate statement of reasons and bases. As such, the May 2020 decision was also vacated, and the appeal returned to the Board. The Board finds that a retroactive opinion is warranted to allow an appropriate clinician to provide a review of the Veteran's symptoms and assess the severity of his disability prior to November 13, 2014. The matters are REMANDED for the following action: 1. Obtain a retroactive opinion from an appropriate clinician to determine the severity and relevant symptoms of the Veteran's lumbar spine disability prior to November 13, 2014. If a retroactive opinion is not possible, the examiner should provide detailed reasoning. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's lumbar spine disability under the rating criteria prior to November 13, 2014. In so doing, the examiner must provide information on the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing prior to November 13, 2014. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups prior to November 13, 2014. If it is not possible to provide a specific measurement based on the medical evidence, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (Continued on the next page) If it is not possible to provide a specific measurement 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). e H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.