Citation Nr: A21017901 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 190709-17333 DATE: November 4, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for lumbar spine degenerative disc disease and joint disease with spondylosis and strain, effective prior to January 18, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1998 to October 2002. This appeal originated from a November 2009 rating decision by the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA), which granted service connection for a thoracolumbar spine disability (Legacy appeal). On February 2019, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), became effective. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review In a June 2019 rating decision following a Board remand, the AOJ, in pertinent part, granted a 40 percent rating for the Veteran's lumbar spine condition, effective January 18, 2017, and a 20 percent rating from February 6, 2019 and thereafter. In July 2019, the Veteran submitted a VA Form 10182 to appeal his claim to the Board and selected the Direct Review lane. In March 2020, the Board, in pertinent part, denied an increased rating higher than 10 percent for lumbar spine degenerative disc disease and joint disease with spondylosis and strain prior to January 18, 2017. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court) and pursuant to a joint motion for partial remand (JMPR), the Court vacated the Board's decision, insofar as it had denied a rating higher than 10 percent for the Veteran's lumbar spine disability prior to January 18, 2017. The JMPR specifically noted that the Veteran was not challenging an increased rating higher than 40 percent for the lumbar spine disability from January 18, 2017 to February 6, 2019, an effective date prior to July 25, 2009, for the grant of service connection for his back disability, and a total disability rating based on individual unemployability prior to July 26, 2016. See January 2021 JMPR p. 1. Further, the JMPR noted that the Board's grant of a 40 percent rating for the lumbar spine disability, effective February 6, 2019, and an earlier effective date of November 28, 2016, for the grant of service connection with a 10 percent rating for bilateral radiculopathy of the lower extremities were favorable findings that the Court may not disturb. Id. at 1-2. 1. Entitlement to an increased rating in excess of 10 percent for lumbar spine degenerative disc disease and joint disease with spondylosis and strain, effective prior to January 10, 2017 is remanded. The issue of entitlement to an increased rating higher than 10 percent for the lumbar spine disability prior to January 10, 2017, is remanded to correct a duty to assist error that occurred prior to the June 2019 rating decision on appeal. Specifically, pursuant to the January 2021 JMPR, the AOJ provided an inadequate VA examination in October 2009 addressing the severity of the Veteran's lumbar spine disability prior to January 10, 2017. The January 2021 JMPR found that the Veteran's case should be remanded for another VA medical examination to address the Veteran's functional impairment during flare-ups prior to January 10, 2017. Specifically, it was noted that an October 2009 VA examiner found that the Veteran had flare-ups with day-to-day activities that required him to take rest breaks but did not attempt to measure the loss of range of motion associated with these flare-ups. See January 2021 JMPR p. 2. It was noted that as part of the new examination provided the examiner should consider the lay statement made by the Veteran during the October 2012 Board hearing that estimated the Veteran's range of motion during flare-ups to be approximately 30 degrees. Id. at 3. Finally, the JMPR found that the Board may not consider the ameliorative effects of medication in addressing the impairment caused by the Veteran's lumbar spine disability. Id. at 3-4. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected lumbar spine degenerative disc disease and joint disease with spondylosis and strain, prior to January 10, 2017. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the degree possible, with consideration of impairment prior to January 10, 2017, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner also must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups prior to January 10, 2017. 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 prior to January 10, 2017. Specifically, the Veteran testified at the October 2012 Board hearing that he estimated his range of motion of his lumbar spine being restricted to 30 degrees during a flare-up. 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). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.