Citation Nr: 21073952 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-33 306 DATE: December 13, 2021 REMANDED Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) (lumbar spine disability) is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve) is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1959 to March 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the lumbar spine disability from 40 percent to 20 percent, effective January 17, 2014. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2016. A copy of the transcript has been reviewed and associated with the claims file. In a May 2020 decision, the Board restored the 40 percent rating for the Veteran's lumbar spine disability, effective January 17, 2014, and remanded the issue of entitlement to a rating in excess of 40 percent. This matter was last before the Board in July 2021, at which time it was remanded for an addendum medical opinion. 1. Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) (lumbar spine disability) is remanded; 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve) is remanded. Pursuant to the Board's remand instructions, addendum medical opinions were issued in August 2021 and October 2021. However, after a review of the evidence, the Board finds that these medical opinions are insufficient to determine the present claims and did not adhere to the July 2021 remand instructions. In this regard, the examiners noted that an accepted orthopedic principal in Wheeless' textbook of Orthopedics indicated that one cannot perform passive motion on the back. However, the examiners failed to provide a citation or a text of the quote. Moreover, although the examiners indicated that it is an accepted orthopedic principal, they did not indicate whether the inability to furnish such an estimate was predicated on a lack of medical knowledge among the medical community at large. Furthermore, the examiners failed to provide an opinion regarding whether the Veteran suffered from unfavorable ankylosis of the entire thoracolumbar spine or entire spine or the functional equivalent of ankylosis. In addition, the examiners failed to provide an opinion as to whether the Veteran suffered from any incapacitating episodes for his service-connected IVDS, including during a flare-up, throughout the rating period on appeal and the severity of the Veteran's service-connected radiculopathy, including during a flare-up, as requested in the July 2021 remand instructions. Accordingly, the Board finds that a remand is warranted in order for an addendum medical opinion to be issued. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from September 2021 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand, to an examiner who has not previously provided an opinion in this matter for an addendum medical opinion. A VA examination is only necessary if deemed so by the examiner. The examiner should review the claims file in its entirety, including a copy of this remand, and note such review in the examination report. The examiner should respond to the following: A. With regard to the May 2021 VA examination, provide an estimate as to the passive range of motion of the lumbar spine and note the point at which there is pain, if any. B. With regard to the May 2021 VA examination, provide an estimate of the degree of lost motion during flare-ups of pain. C. With regard to the May 2021 VA examination, does the Veteran have unfavorable ankylosis of the entire thoracolumbar spine or entire spine or the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis? D. Throughout the rating period on appeal, or from 2013, has the Veteran suffered from any incapacitating episodes for his service-connected IVDS, including during a flare-up? If so, list the duration and frequency. E. With regard to the May 2021 VA examination, during a flare-up, is the Veteran's service-connected radiculopathy characterized as mild, moderate, moderately severe, or severe incomplete or complete paralysis? The examiner should elicit this information from the record. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being most confident. (Continued on the next page) The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.