Citation Nr: 21070970 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-04 886A DATE: November 29, 2021 REMANDED 1. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD) is remanded. 2. Entitlement to an effective date prior to December 4, 2014 for the assignment of a 40 percent rating for lumbar spine DDD is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1994 to February 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 40 percent rating for lumbar spine DDD. In January 2019, the case was remanded for additional development. 1., 2. Entitlement to a rating in excess of 40 percent for lumbar spine DDD, and to an effective date prior to December 4, 2014 for the assignment of a 40 percent rating for lumbar spine DDD The Board is aware that these claims have been remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2019, the Board remanded this matter for an examination to assess the current severity of the Veteran's lumbar spine disability, and for a retrospective opinion to estimate range of motion (ROM) measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing for VA examinations conducted during the appeal period. [Notably, on January 2015 examination, forward flexion was to 20 degrees, and the Veteran denied flare-ups. However, on April 2017 examination, ROM testing was not performed due to reported pain on examination, and the examiner did not provide ROM estimates.] On October 2019 examination, ROM testing was not performed "due to severe pain and instability." The examiner (who also was the examiner in April 2017) wrote that she was "unable to provide a retrospective opinion by estimating a ROM that was not able to be performed on an exam that was done in 2017 and recent exam I was still unable to do ROM due to severity of veterans condition." The Board finds the October 2019 opinion does not substantially comply with the January 2019 remand directives. The examiner explained that she was unable to provide ROM estimates because ROM testing was not performed during April 2017 and October 2019 examinations. However, she failed to address other evidence of record which may contain the data necessary to make such estimates, such as private medical treatment records (among the Veteran's Social Security Administration (SSA) records in the file), a June 2015 SSA function report completed by the Veteran (wherein he described his daily activities/limitations), a July 2015 SSA residual functional capacity assessment (completed by a physician), and private spine treatment records from Baltimore Spine Institute dated February 2015 through April 2017. The Board notes that in Jones v. Shinseki, 23 Vet. App. 382, 390 (2010), the U.S. Court of Appeals for Veterans Claims (CAVC) held that the Secretary must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The CAVC held that "it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered 'all procurable and assembled data,' by obtaining all tests and records that might reasonably illuminate the medical analysis... When the record leaves this issue in doubt, it is the Board's duty to remand for further development." Jones v. Shinseki, 23 Vet. App. at 390. [In light of the inability to perform ROM testing on the two most recent examinations, an in-person examination is not necessary on remand, unless deemed so by the consulting provider upon review of the record (e.g., if interview of the Veteran is deemed necessary).] Remand is also required to address a medical question raised by recent precedential caselaw. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the CAVC held (in a claim seeking a rating in excess of 40 percent for a low back disability) that the Board must consider whether the Veteran's symptoms "resulted in the functional equivalent of ankylosis." Here, the Veteran's lumbar DDD is rated 40 percent throughout the period on appeal. In order to warrant a higher rating under the General Rating Formula, the evidence must show unfavorable ankylosis of his entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The April 2017 and October 2019 examination reports each note that the spine was not ankylosed. However, considering that there was no ROM testing on those two VA examinations due to "severe pain" (unclear whether severe pain was observed or just reported with decline to participate in ROM studies) it is unclear whether his back symptoms manifest/result in the functional equivalent of ankylosis. On remand, the consulting medical provider should address this raised medical question. The January 2019 Board remand found the matter of entitlement to an effective date prior to December 4, 2014 for the assignment of a 40 percent rating for lumbar spine DDD is inextricably intertwined with the claim for increase being remanded, as development for a retrospective was then ordered. As the claim for increase is again remanded herein for additional development, appellate consideration of earlier effective date claim must be deferred pending resolution of the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) clinical records of all VA evaluations or treatment the Veteran has received for his lumbar spine disability. 2. Thereafter, arrange for the Veteran's claims file to be forwarded to an appropriate clinician (in orthopedics and other than the April 2017 and October 2019 examiner) for a retrospective medical opinion regarding the nature and severity of the Veteran's lumbar spine disability during the appeal period. The entire record (to include this Remand) should be reviewed by the provider. [If, upon review of the record, the consulting provider determines that further examination or interview of the Veteran is deemed necessary, such should be arranged.] The consulting provider should respond to the following: (a) Provide a retrospective opinion regarding whether or not the Veteran's lumbar spine disability has been manifested by unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, or the functional equivalent of ankylosis during the period on appeal. If so, identify the periods when such impairment is shown, with citation to the supporting factual data. (b) Provide a retrospective opinion regarding whether or not the Veteran's lumbar spine disability has been manifested by incapacitating episodes that required bed rest prescribed by a physician. If so, identify when bed rest was prescribed and the duration of such bed rest, with citation to the supporting factual data. The rationale for the opinions provided must reflect consideration of other (than the April 2017 and October 2019 examination reports, which note the Veteran did not participate in ROM testing) sources of evidence which may contain pertinent information regarding the manifestations of the Veteran's lumbar spine disability during the appeal period, to include: - Private medical treatment records (found among the Veteran's SSA records in the claims file); - A June 2015 SSA function report completed by the Veteran; - A July 2015 SSA residual functional capacity assessment; and, - Private spine treatment records from Baltimore Spine Institute dated from February 2015 through April 2017. If a response to an opinion requested cannot be provided "without resorting to mere speculation," the provider must state whether the need to speculate is due to 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 (lacks the requisite knowledge or training). Complete rationale should accompany all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.