Citation Nr: 21072111 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 09-47 780 DATE: December 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for the service-connected lumbar spine disability prior to October 7, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1968 to March 1970. The matter before the Board of Veteran's Appeals (Board) arises from a July 2008 rating decision, which denied the Veteran's April 2008 claim for an increased rating for his service-connected lumbar spine disability. The Veteran provided hearing testimony before the undersigned in March 2014. The appeal was then remanded by the Board in July 2014 and again in January 2019. At the time of these prior remands, the matter of whether separate ratings were warranted for radiculopathy of the lower extremities was also before the Board. In April 2020, the Regional Office (RO) issued a rating decision and awarded service connection for radiculopathy of the right and left lower extremities. Those issues are no longer before the Board. An April 2020 rating decision awarded a 20 percent rating for the underlying lumbar spine disability, effective October 7, 2019. In September 2020, the Board issued a decision denying a rating in excess of 10 percent prior to October 7, 2019, and denying a rating in excess of 20 percent thereafter. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In July 2021, the Court signed an Order granting a Joint Motion for Partial Remand (joint motion). The joint motion clarified that the Veteran is not appealing the part of the Board decision that denied a rating in excess of 20 percent from October 7, 2019. The decision to deny a rating excess of 10 percent prior to October 7, 2019, however, was vacated and remanded to the Board for action in accordance with the joint motion. In particular, the joint motion found the Board erred in relying on May 2010 and January 2012 VA examination reports, because the examiners did not provide range of motion estimates for flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017); see also Jones v. Shinseki, 23 Vet. App. 382, 290 (2010). The joint motion indicated that, on remand, the Board shall obtain a new VA medical opinion that complies with Sharp and Jones. The Board, therefore, must remand this claim for an opinion related to the Veteran's flare-ups and the range of motion estimates during the period prior to October 7, 2019. The joint motion also indicated that the Board erred when it provided medical judgment of the Veteran's lay statements related to the severity of his condition. See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). The Board, therefore, finds that the medical opinion obtained on remand should account for the Veteran's lay statements and discuss whether the Veteran's descriptions allow for an estimation of limited motion or functional loss during the time period prior to October 7, 2019. The matter is REMANDED for the following action: 1. Obtain a medical opinion related to the severity of the Veteran's service-connected lumbar spine disability prior to October 7, 2019, in accordance with the July 2021 joint motion. The examiner should review the claims file and provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria for the period prior to October 7, 2019. Pursuant to the joint motion, the clinician providing the opinion must attempt to estimate, based upon a review of the medical evidence and the Veteran's lay statements, the duration of any flare-ups and the degree of functional loss during flare-ups, to include estimated loss of motion during 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). 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.