Citation Nr: 21070457 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 11-23 174 DATE: November 24, 2021 REMANDED Entitlement to an increased rating for a low back disability, in excess of 10 percent prior to August 18, 2011, and in excess of 20 percent from August 18, 2011, to January 23, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to August 1975. In August 2020, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the Veteran's claim for a low back disability. Another remand for further development is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased rating for a low back disability, in excess of 10 percent prior to August 18, 2011; and in excess of 20 percent from August 18, 2011, to January 23, 2017 is remanded. A July 2017 Board decision denied increased ratings for a low back disability, in excess of 10 percent prior to August 18, 2011; and in excess of 20 percent from August 18, 2011, to January 23, 2017. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims. In May 2018, the Court partially vacated the Board's July 2017 decision, and remanded the claims for appropriate action, pursuant to a May 2018 Joint Motion for Remand. Pursuant to the May 2018 Joint Motion, the Board remanded the claim in August 2018 for a VA examination. A VA examination was performed in September 2019. In October 2019, VA requested an addendum as the VA examination did not address any of the special instructions listed in the examination request and VA remand. In November 2019, a VA examiner provided an addendum to the September 2019 report. In August 2020, the Board again remanded this claim because the November 2019 VA examiner did not opine as to the possible measurements regarding passive range of motion or pain on weight-bearing during the periods from February 2009 to August 2011, and from August 2011 to January 2017. The examiner also did not state whether it was not possible to provide specific measurements for the requested periods without speculation. The Veteran underwent VA examination in February 2021. However, in March 2021, VA requested an addendum as the February 2021 VA examination did not comply with the August 2020 BVA remand requests. In an April 2021 addendum opinion, the examiner opined that for the thoracolumbar spine for the time period of February 2009 to August 2011 and from August 2011 to January 2017, there was no way to determine the extent of the Veteran's disability during the specified time period without mere speculation. After reviewing the file, the evidence suggested that the condition remained about the same throughout the past couple of years, but the examiner was unable to determine the extent of the flare up or functional impairment during the time period without speculation. At a June 2021 VA examination, the examiner opined that, regarding passive range of motion (ROM) and pain on weight-bearing during the periods from February 2009 to August 2011, measurements were flexion was 0 to 70 degrees with pain throughout, extension was 0 to 15 degrees with pain throughout, right and left lateral flexion were 0 to 20 degrees with slight pain, right and left lateral rotation were 0 to 30 degrees from August 2011 to 2017. The range of motion measurements were flexion to 60 degrees, extension to 30 degrees, right lateral motion to 30 degrees, and left lateral motion to 30 degrees. The examiner opined that on weight-bearing during February 2009 to August 2011, after the review of the claims file, that the measurements were about the same as the passive range of motion information. Regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups during the periods from February 2009 to August 2011, during the specific time according to the claims file and based on the examiner's opinion that the Veteran was experiencing flare ups at least weekly, rated as a 10/10 for 2 hours at a time and from August 2011 to January 2017. In 2012, flare ups were on daily basis. He was having flare ups of pain mostly at night 9/10 on pain intensity and in 2013, flare ups were not documented in severity and in 2017 documentation included complaints of random spasms that were severe and limited activity. Any movement hurt the back. The average VAS for pain was 7/10. The Board finds the April and June 2021 VA examinations to be incomplete as the examiner did not provide an opinion as to functional loss of range of motion during flare-ups and did not properly explain not doing so. An opinion is speculative when it is based on the absence of procurable information or an examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer flare up opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Board finds the April and June 2021 VA examination reports to be incomplete for rating purposes. The Board notes that a remand confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). VA's statutory duty to assist the Veteran includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the most recent VA examinations were incomplete, the Board finds that there was not substantial compliance with the August 2020 Board remand requests. Thus, remand is again necessary. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner for a retrospective medical opinion regarding the severity of a service-connected lumbar spine disability from February 2009 to August 2011, and from August 2011 to January 2017. The examiner must review the claims file, to include this Remand, the Board's August 2020 Remand, August 2018 Remand, and the May 2018 Joint Motion for Remand, all previous VA medical examination reports, and the Veteran's lay statements. The examiner should estimate the degrees of range of motion on active and passive motion, and for weight-bearing and nonweight-bearing from February 2009 to August 2011, and from August 2011 to January 2017. The examiner should estimate the Veteran's functional loss, expressed in degrees of range of motion, due to flare ups and after repeated use over time based on all the evidence of record, including the Veteran's lay information from February 2009 to August 2011, and from August 2011 to January 2017. The Board recognizes the difficulty in making such determinations, but requests that the examiner provide a best estimate based on the examination findings and statements of the Veteran. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups during the periods from February 2009 to August 2011, and from August 2011 to January 2017. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's low back disability alone and discuss the effect of the Veteran's back disability on any occupational functioning and activities of daily living during the periods from February 2009 to August 2011, and from August 2011 to January 2017. The examiner should reconcile the opinions with the previous examinations of record from February 2009 to January 2017. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.