Citation Nr: 21071651 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-29 080A DATE: December 1, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for thoracolumbar spine degenerative arthritis with strain is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2002 to April 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for thoracolumbar spine degenerative arthritis with strain and assigned a 10 percent evaluation effective from April 28, 2011. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2017. A transcript of the proceeding is of record. The Board remanded the case for further development in April 2018 and July 2020. The case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the issue on appeal. In July 2020, the Board remanded the case to obtain an additional VA examination complying with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the Board instructed the examiner to provide the range of motion in degrees and test the Veteran's range of motion in active motion, passive motion, weight-bearing and nonweight-bearing. The Veteran was subsequently afforded a VA examination in November 2020. Although the examiner did provide the required testing results, he opined that it would be speculative to opinion on the etiology of the atypical loss of range of motion. He stated that those measurements are unlikely due to the diagnosed conditions. In November 2020, the agency of original jurisdiction (AOJ) requested a clarifying opinion from the examiner regarding his statement that the range of motion was not due to the diagnosed conditions. In an addendum, the examiner indicated that the diagnosed back pathology would not result in such a marked loss of range of motion that was measured on the examination. The examiner also stated that it is not possible to apportion the range of motion measurements attributable to the diagnosed condition because "one cannot generate accurate back range of motion measurements by speculating on atypical values." The examiner did not identify any other factors or reasons that may account for the decreased range of motion findings. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (noting the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion, or the basis must otherwise be apparent in the Board's review of the evidence). Therefore, the Board finds that an additional VA examination is needed. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his thoracolumbar spine degenerative arthritis with strain. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination with a different VA examiner to ascertain the severity and manifestations of his service-connected thoracolumbar spine degenerative arthritis with strain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected thoracolumbar spine degenerative arthritis with strain. In particular, he or she should provide the range of motion in degrees and test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also state whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. He or she should further indicate whether there is any form of ankylosis and state the total duration of incapacitating episodes during the past 12 months. In addition, the examiner should identify any neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors and flare-ups. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for past VA examinations. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The examiner should not resort to speculation in providing these findings or any opinion. If the examiner determines that any findings, including any range of motion measurements, are not attributable to the service-connected back disability, he or she should provide an explanation and identify any other factors or reasons that may account for them. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, Associate 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.