Citation Nr: 21069921 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-11 593 DATE: November 22, 2021 REMANDED Entitlement to a rating greater than 10 percent for lumbar spine degenerative disc disease L5-S1, compression fracture T12 and chronic sprain, prior to January 23, 2015, is remanded. REASONS FOR REMAND The Veteran had active military service from December 1985 to December 1988 and from June 1990 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) from the December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a March 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in June 2021 and was remanded to obtain a retrospective opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected joint prior to January 23, 2015. This remand directive was in compliance with a March 2021 joint motion for partial remand by the Court of Veterans Appeals. Entitlement to a rating greater than 10 percent for lumbar spine degenerative disc disease L5-S1, compression fracture T12 and chronic sprain, prior to January 23, 2015, is remanded. As noted above, this matter was previously before the Board in June 2021 and was remanded for a retrospective opinion. Subsequently, in September 2021 an addendum opinion was obtained. The examiner opined that a review of the medical record suggests at least as likely as not that the Veteran did have additional loss of range of motion during flare-ups and repeated use over time at his August 2011 examination based on the history section of the examination. The examiner stated that it would be "highly atypical" for these conditions not to result in functional loss with flare ups and repeated use over time. However, the examiner did not provide a specific additional loss of range of motion during flare ups or repeated use. The examiner stated that a statement could not be provided without an in-person examination of the Veteran to evaluate the loss of range of motion. Therefore, the examiner stated that without examining the Veteran, it "would be mere speculation" to conclude the range of motion during flare ups or repeated use over time at the August 2011 examination. It is unclear to the Board whether the examiner is referring to an in-person examination of the Veteran at the time of the August 2011 examination or the September 2021 opinion given. The Board finds the September 2021 addendum opinion does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. Additionally, while the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Therefore, the Board finds that another addendum opinion should be obtained. If the examiner finds that an in-person examination is necessary, then the Veteran should be afforded one. The matters are REMANDED for the following action: 1. Return the claims file to the September 2021 examiner, if available, to obtain an addendum retrospective opinion. Specifically, the VA examiner should address the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups that can be estimated for the August 2011 lumbar spine condition examination or at any other time it can be ascertained during the period prior to January 23, 2015. If an in-person examination is necessary, then the Veteran should be afforded one. If the examiner is unable to provide a retrospective opinion as to the specific range of motion findings, he or she should clearly explain why in the report. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.