Citation Nr: 21070245 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-35 133 DATE: November 23, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent from January 13, 2012 to June 23, 2019, for degenerative joint disease (DJD) of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1978 through August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2020 decision, the Board denied an initial rating in excess of 20 percent from January 13, 2012, to June 23, 2019, and in excess of 40 percent from June 23, 2019, for DJD of the lumbar spine. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (Court of CAVC). Pursuant to a joint motion for partial remand (JMPR) filed by VA and the Veteran, in April 2021 the Court vacated that part of the Board's June 2020 decision that denied entitlement to an initial rating higher than 20 percent from January 13, 2012, to June 22, 2019, and remanded it to the Board for compliance with its instructions. Pursuant to the JMPR, the matter is remanded for further development. 1. Entitlement to an initial rating in excess of 20 percent from January 13, 2012 to June 22, 2019, for degenerative joint disease (DJD)is remanded. In the JMPR, the parties found that the Board in its June 2020 decision failed to provide adequate reasons and bases in two specific areas: (1) failure to explain the weighing of April 2012 and September 2016 VA Compensation and Pension (C&P) examination reports because the Board did not discuss any other evidence of record and did not explain how the testing contained in the inadequate examinations gave the Board enough information to rate the Veteran's back condition, citing Correia v. McDonald, 28 Vet. App. 158, 170 (2010); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); and (2) failure to address January 2012, February 2012, and June 2012 VA medical records and whether such records evince objective neurological abnormalities associated with the Veteran's DJD, so as to warrant a separate rating, citing Note 1 of Diagnostic Code 5242 (associated objective neurologic abnormalities are to be evaluated separately from orthopedical abnormalities under an appropriate diagnostic code). 38 C.F.R. § 4.71a As discussed in the JPMR, an examiner must obtain necessary information from the Veteran as to active and passive range of motion testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing testing. The examiner also must obtain required information concerning the degree of additional range of motion loss due to pain on use or due to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors prior to providing an estimate concerning the additional loss of range of motion during a flare-up. See Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA examiners did not obtain the comprehensive information required by Correia, DeLuca and Sharp in the April 2012 and September 2016 examination reports. Similarly, VA examiners did not adequately account for associated objective neurologic abnormalities in the Veteran's several 2012 medical records. Consequently, a retrospective medical opinion is necessary to capture the severity of the Veteran's DJD for the period of January 13, 2012, to June 22, 2019. See 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). The issue of an increased rating in excess of 20 percent from January 13, 2012, to June 22, 2019, for service-connected thoracolumbar degenerative joint disease is remanded. The matter is REMANDED for the following action: 1. Obtain a retrospective VA opinion from a qualified examiner to determine the severity of the Veteran's DJD of the lumbar spine for the period from January 13, 2012, and prior to June 23, 2019. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner is requested to specifically review the April 2012 and September 2016 VA examination reports pertinent to the Veteran's lumbar spine and provide a retrospective opinion as follows: (a.) describe the nature and severity of the Veteran's lumbar spine disability and discuss the Veteran's documented medical history and complaints regarding the severity of his lumbar spine disability for the period from January 13, 2012, and prior to June 23, 2019. (b.) address the findings made in the April 2012 and September 2016 VA examinations for the lumbar spine disability and to the extent possible, determine whether the Veteran's range of motion results from the April 2012 and September 2016 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described in degrees. (c.) indicate whether during this period, there was pain, weakened movement, excess fatigability, or incoordination on movement. Based on the medical records, examinations, and the Veteran's reports, the examiner should also note the degree to which any additional range of motion was lost during this time due to (1) pain on use and following repetitive use; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (d.) obtain information from the Veteran and his medical records regarding whether his lumbar spine disability had flare-ups during this time and, if so, the severity, frequency, duration, and functional loss manifestations of the flare-ups; estimate the degree of additional range of motion loss due to pain on use or due to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors prior to providing an estimate concerning the additional loss of range of motion during a flare-up. The examiner is requested to specifically review the April 2012 and September 2016 VA examination reports pertinent to the Veteran's lumbar spine and specifically address January 2012, February 2012, and June 2012 VA medical records and provide a retrospective opinion for the period as follows: (e.) indicate whether the Veteran's lumbar spine disability was manifested by neurologic abnormalities (separate from the orthopedic abnormalities) during the period from January 13, 2012, and prior to June 23, 2019. The examiner must comment on the neurologic findings in VA medical records dated in January 2012, February 2012, and June 2012 as well as the other relevant medical and lay evidence. The examiner is advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 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). Cory Picton Veterans Law Judge Board of Veterans' Appeals 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.