Citation Nr: 21072472 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-32 791 DATE: December 3, 2021 REMANDED Entitlement to an effective date earlier than April 26, 2017 for the assignment of a 40 percent rating for discogenic disease of the lumbar spine (hereinafter lumbar spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from September 1980 to March 1984. The matter is on appeal before the Board from a May 2017 rating decision. In a January 2020 Board decision, an effective date prior to April 26, 2017 for the assignment of a 40 percent rating for the Veteran's service-connected lumbar spine disability was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court or CAVC), and in September 2020 the Court issued a Joint Motion for Partial Remand (JMPR) vacating and remanding the portion of the January 2020 Board decision denying an effective date prior to April 26, 2017 for the grant of a 40 percent disability for the Veteran's lumbar spine disability. The Board notes that the Veteran did not challenge the portion of the Board's January 2020 decision denying an effective date prior to May 19, 2011 for the assignment of a 20 percent evaluation for a left lower extremity radiculopathy. Effective Date 40 Percent Rating Lumbar Spine Disability In the September 2020 JMPR, the parties agreed that the Board, in its January 2020 decision, failed to address any possible functional loss caused by reported flare-ups and pain during the period on appeal. It was noted that in a July 2011 VA examination, the Veteran reported experiencing "severe flareups 2 to 3 times per week, lasting for hours." The VA examiner indicated that the Veteran's "major functional impact is pain," and therefore he had loss of function with use. Since the Board's analysis in the January 2020 decision, did not include a discussion of the reported functional impact caused by flare-ups and pain documented in the 2011 VA examination, and whether that functional impact would entitle the Veteran to an earlier effective date for the award of the 40 percent rating for his lumbar spine disability, the parties agreed that the Board failed to provide adequate reasons and bases. Thus, the Court directed that on remand the Board must provide adequate reasons and bases, and determine functional loss caused by pain and flare-ups when addressing whether the Veteran is entitled to an effective date prior to April 26, 2017 for his 40 percent lumbar spine disability rating. While the July 2011 VA examination noted the Veteran's reports pertaining to functional loss and flare-ups, as indicated above, the VA examiner did not provide either an opinion or any estimations in terms of range of motion regarding flare-ups and the effect of pain on functional ability. As the record does not contain the medical data necessary for the Board to make such an assessment, remand is warranted to obtain a retrospective VA medical opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The Board acknowledges the challenge this presents for the examiner in trying to recreate the severity of the Veteran's back disability nearly a decade ago. In a July 2021 decision, the Board remanded the issue of an effective date prior to April 26, 2017 for the assignment of a 40 percent rating for the Veteran's lumbar spine disability for further development, specifically to obtain a retrospective VA medical opinion. Unfortunately, the VA medical opinion obtained in October 2021, did not address the directives in the July 2021 Board remand. Rather, the VA examiner provided an opinion pertaining to service connection, and did not provide a retrospective opinion pertaining to pain, functional loss, and flare-ups for the Veteran's service-connected lumbar spine disability for the period between May 19, 2011 and April 26, 2017. Thus, an additional remand is warranted to obtain a retrospective VA medical opinion concerning the effects of pain, functional loss, and flare-ups on the Veteran's service-connected lumbar spine disability. The matters are REMANDED for the following action: 1. Obtain a retrospective medical examination/opinion regarding the severity of the Veteran's service-connected lumbar spine disability during the period on appeal between May 19, 2011 and April 26, 2017. If an in-person examination or telephonic or video interview of the Veteran is needed to answer the Board's questions, then schedule an examination/interview with the Veteran. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that during all or any portion of the period in question from May 29, 2011 to April 26, 2017, the Veteran had pain on active motion, passive motion, in weight bearing, and/or in non-weight bearing? (b.) Is it at least as likely as not (50 percent or greater probability) that during all or any portion of the period in question from May 19, 2011 to April 26, 2017, the Veteran experienced functional loss due to flare-ups or repeated use over time? If the answer to that question is yes, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. More specifically, is at least as likely as not (50 percent or greater probability) that during all or any portion of the period in question from May 19, 2011 to April 26, 2011, the Veteran experienced functional loss that effectively limited his forward flexion to 30 degrees or less? If so, how frequently did he experience that level of functional loss, and for how long? Is at least as likely as not (50 percent or greater probability) that during all or any portion of the period in question from May 19, 2011 to April 26, 2011, the Veteran experienced functional loss that was functionally equivalent to ankylosis of the thoracolumbar spine? If so, was it more closely equivalent to favorable or unfavorable ankylosis, how often did such functional impairment occur, and how long did it last? Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.