Citation Nr: 21070050 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 11-21 321 DATE: November 22, 2021 REMANDED Entitlement to an initial disability rating in excess of 40 percent prior to August 28, 2013, in excess of 60 percent from August 28, 2013 to February 5, 2016, in excess of 40 percent from February 6, 2016 to June 28, 2021, and in excess of 50 percent thereafter for thoracolumbar spine degenerative arthritis and degenerative disc disease (back disorder) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1975 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Most recently, the Board remanded this matter in June 2021 for further development. That development having been completed, this matter has returned to the Board for further appellate review. A March 2021 rating decision granted an increased initial disability rating of 40 percent. An August 2021 rating decision granted an increased disability rating of 50 percent, effective June 29, 2021. As these increases do not represent a full grant of benefits sought on appeal as concerning this issue, the claim for an increased disability rating remains pending before the Board. See A.B. v. Brown, 6 Vet. App., 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). 1. Increased Rating Unfortunately, another remand is required as there has not been substantial compliance with the directives of the June 2021 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance, rather than absolute compliance, with remand orders). In this regard, the Board previously remanded this issue for a VA examiner to elicit information regarding the severity, frequency, and duration of any flare-ups the Veteran experiences. The examiner was directed to provide an estimate, if at all possible, of the additional impairment due to flare-ups. If the examiner deemed it not possible to provide a specific measurement without speculation, the examiner was directed to state whether such was due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. The June 2021 examiner stated that repetitive motion symptoms and flare-ups were not directly observed during the examination, and after an examination of the Veteran and a review of the available records, he had no basis to offer additional losses of function or motion during a flare-up or after repetitive use. He did not elaborate. The Board notes that this response has already been deemed inadequate in the October 2019 remand, which was also reiterated in the January 2021 remand. Accordingly, another remand is required. The examiner was also asked to determine if the severity of the Veteran's back disorder was consistent with that contemplated by ankylosis, specifically, unfavorable ankylosis of the entire thoracolumbar spine. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." 38 C.F.R. § 4.71a, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. An August 2021 addendum opinion reflects that, upon review of the Veteran's electronic record, the examiner found the Veteran to have unfavorable ankylosis of the entire thoracolumbar spine. The Board notes that the June 2021 VA examination report reflects the Veteran range of motion testing revealed his flexion was limited to 25 degrees, extension limited to 10 degrees, and his right and left lateral flexion and right and left lateral rotation were each limited to 20 degrees. It is unclear from the addendum whether the Veteran's thoracolumbar spine is fixed in flexion or extension, or whether the examiner found that the manifestations of the Veteran's back disorder, including any additional limitations after repetitive use or during a flare-up were consistent with that of unfavorable ankylosis of the entire thoracolumbar spine. If the addendum was based on the latter, the Board finds that a retrospective opinion should be obtained regarding the entirety of the appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008). Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, from June 2021, forward. 2. Thereafter, schedule the Veteran for another VA examination with the same examiner who conducted the June 2021 examination, or a suitable substitute, to determine the current and previous severity of his back disorder. The examiner should respond to the following: (a) Provide a full description of the Veteran's back disability and report all signs and symptoms necessary for evaluating his disability under the rating criteria. (b) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement with 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). (c) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any and all flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, 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. If it is not possible to provide a specific measurement or estimate of the additional impairment of the Veteran's back disorder during flare-ups or after repetitive use over time 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). (d) The examiner should provide a complete rationale for the August 2021 addendum opinion which found the Veteran to have unfavorable ankylosis of the entire thoracolumbar spine. The examiner should specifically address whether this finding was based on (i) the range of motion testing conducted at the June 2021 VA examination, or (ii) due to the totality of the Veteran's back disorder, to include all functional loss due to factor such as pain, weakened movement, excess fatigability, and incoordination, during flare-ups and/or after repeated use over time. If the August 2021 addendum was based on (ii), the examiner should provide an opinion as to whether this finding is applicable to the entirety of the appeal period, i.e., from August 2008, forward. (Continued on the next page) * In reaching this opinion, the examiner should consider and address the March 2021 retrospective opinion estimating the Veteran's additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. The examiner must provide a complete rationale for all opinions expressed. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.