Citation Nr: 21070759
Decision Date: 11/26/21	Archive Date: 11/26/21

DOCKET NO. 10-04 301
DATE: November 26, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for low back strain with osteoarthritis and intervertebral disc syndrome (IVDS) (low back disability) for the period prior to October 1, 2010 is remanded.

REASONS FOR REMAND

On the most recent review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development due to lack of substantial compliance with a prior remand. See 07/30/2021 BVA Decision. As discussed further below, the Board again finds less than substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Hence, another remand is indicated.

Entitlement to a rating higher than 10 percent for low back disability is remanded.

The prior remand directed the AOJ to return the claims file to the clinician to review the December 2008 VA examination report and then provide an assessment of the Veteran's additional loss of range of motion (ROM), if any, from functional loss due to flare-ups and repeat use over time, which was not done. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board provided specific guidance by which the assessment was to be done. Nonetheless, the clinician adhered to his prior opinion that the Veteran's lay reports did not constitute flare-ups. He essentially submitted the identical opinion that the Board previously found non-responsive. See 09/03/2021 C&P Exam. The Board will not expend additional appellate time by directing the AOJ to return the file to the clinician.

The matters are REMANDED for the following action:

The AOJ shall send the claims file to an equally qualified clinician, even if the file must be sent to a facility not co-located with AOJ. Instruct the clinician to review the July 2021 Board remand and to disregard the prior clinician's reports.

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Inform the clinician that the Veteran's lay reports of his symptoms at the 2008 examination is competent evidence that must be considered when making the Sharp estimate. Hence, the examiner must base the Sharp estimate of the Veteran's functional loss, in terms of additional degrees of loss of ROM, due to flare-ups and repeat use over time on the Veteran's symptoms as he reported them and the objective findings at the 2008 examination, not the objective findings the examiner made at the May 2021 examination.

The clinician may express his/her degree of confidence in his/her response on a 1-5 scale, with 5 being the most confident and 1 being the least.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.