Citation Nr: 21073010 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 12-03 618 DATE: December 7, 2021 REMANDED Entitlement to an initial rating greater than 20 percent for degenerative joint disease of the lumbar spine (low back disorder) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 to February 1980. The Board notes that this appeal has a rather lengthy procedural history. In September 2014, April 2017, April 2018, November 2019, and January 2021, the appeal was remanded for evidentiary development. It has since been returned to the Board for further consideration. Entitlement to an initial rating greater than 20 percent for degenerative joint disease of the lumbar spine (low back disorder) is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board's January 2021 remand, the Veteran underwent another VA back examination in June 2021. The examiner stated that passive range of motion testing could not be performed because it may cause the Veteran severe pain or risk of further injury. The examiner also noted that the examination was not being conducted during a flare-up, but provided estimated range of motion during a flare-up. Unfortunately, the examiner did not cite to or discuss evidence that led him to the estimates that were provided. The examiner also provided the following remarks: A goniometer was used for all joint range of motion measurements. For the VA established diagnosis of degenerative joint disease of the lumbar spine the diagnosis is changed and it is a progression of the previous diagnosis. claimant has [IVDS] and radiculopathy. Due to the L-spine supports alignment for the veteran's body and attempting to do passive ROM allows more than 50% of his body weight to bend the joint which can result in further injury in this veteran's case. Active range of motion produced enough pain to support the diagnosis, further ROM surpassing such degrees may jeopardize the functionality of claimant's back and cause bedridden pain. There are no contralateral joints on the back. There is no left and right. After reviewing the May 2017 VA exam, there is a difference of ROM. It could be that the veteran was having a flare up at that time which would explain for his ROM difference, though I cannot say for certain without mere speculation. Since the May 2017 exam the veteran has developed IVDS of the lower extremities. Importantly, in the September 2021 Informal Hearing Presentation (IHP), the Veteran and his representative maintain that the Veteran's low back disorder is more severe than presently evaluated. It was also alleged that the Veteran's flare-ups were not properly addressed during the most recent VA examination, despite his history of frequent complaints of back pain during flare-ups. An opinion which describes to the extent possible the degree of additional range of motion loss during flare-ups based on the Veteran's clinical records disclosing the nature and severity of his low back disorder, the Veteran's reports of functional loss during flare-ups, and the examiner's own medical background and knowledge of low back functional impairment given the Veteran's specific presentation should be attempted. A supplemental opinion, which comments retrospectively, to the extent possible, on how the Veteran's reported flare-ups have impacted low back function since the August 2009 claim would help resolve this issue. See Chotta v. Peake, 22 Vet. App. 80, 85-87 (2008) (holding that that the duty to assist "may include obtaining a retrospective medical opinion" "if a disability rating cannot be awarded based on the available evidence"). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an orthopedic specialist for review and an addendum medical opinion regarding the Veteran's functional loss attributable to his service-connected low back disorder, particularly during flare-ups, for the period from August 2009 to the present. The examiner should describe how the Veteran's low back disorder limited his functional ability during flare-ups over this period of time. The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. If such findings cannot feasibly be described, or if an approximation of such findings in reliance of the Veteran's statements cannot be given, the examiner must provide a full explanation why that is so. Regarding flare-ups causing additional loss of motion, a response that the requested opinion cannot be provided "without resorting to mere speculation" because there was insufficient medical evidence upon which to rely is insufficient because it fails to explain why such loss feasibly could not be determined or estimated. (For example, what further medical evidence is necessary to feasibly describe such findings, or approximations, and may the Veteran's own descriptions of his flare-ups be relied upon to form a conclusion?). A complete rationale should accompany all opinions. If the examiner finds that another VA examination is necessary in order to provide the requested opinion, that should be arranged. 2. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.