Citation Nr: 21074115 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-10 036 DATE: December 14, 2021 REMANDED A rating higher than 10 percent prior to April 14, 2014, for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from February 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified in support of this appeal during a hearing held at the Board's central office before the undersigned Veterans Law Judge. In June 2020, the Board issued a decision that in part denied a higher rating for a back disability prior to April 14, 2014. In an April 2021 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for partial remand (JMPR), vacated the Board's June 2020 decision denying a higher rating for a back disability prior to April 14, 2014, and remanded the case for further action consistent with the terms of the joint motion. Specifically, the Parties agreed that a July 2013 VA examination was inadequate to the extent that it did not test for pain on both active and passive motion, and in weightbearing and non-weightbearing. Further, the Parties agreed remand was necessary for the Board to determine whether a retrospective medical opinion was warranted in this case. The Board remanded the claim in August 2021 to obtain a retrospective medical opinion on the historical severity of the Veteran's lumbar spine disability prior to April 14, 2014, with consideration of evidence of record including lay statements, testimony, and medical history. The Board stated that if this opinion could not be provided, the examiner should clearly explain why and discuss whether the July 2013 VA examination was an accurate representation of the Veteran's disability. A retrospective medical opinion was obtained in October 2021. The examiner simply stated, "there is not enough documentation prior to April 14, 2014, to somehow guess motions or state of back prior to that date." The Board finds this retrospective opinion inadequate and not in compliance with prior remand directives. The Board's August 2021 explicitly asked the examiner to discuss evidence of record including the Veteran's lay statements and testimony, which the examiner did not do. Further, the examiner made no opinion or comment on whether the July 2013 VA examination was an accurate representation of the Veteran's disability. Indeed, the retrospective opinion provided no opinion at all. Therefore, the Board finds that another remand is necessary to comply with prior remand directives and to obtain a retrospective medical opinion that addresses all evidence of record and provides complete rationales for any opinions reached. The matter is REMANDED for the following action: Obtain a retrospective medical opinion from an examiner who has not previously provided a medical opinion, preferably with a specialty in orthopedics. The examiner should provide a retrospective medical opinion on the Veteran's lumbar spine disability. That is, with consideration of the evidence of record, including the Veteran's lay statements, testimony, and his history, comment on the historical severity of the Veteran's lumbar spine disability for the period prior to April 14, 2014. If this opinion cannot be provided, the examiner should clearly explain why this is so, including discussing whether the July 2013 VA examination is an accurate representations of the Veteran's disability level. The examiner should discuss any factors present in the evidence of record that may indicate the severity of the lumbar spine disability prior to April 2014 was worse than that reflected in the July 2013 VA examination, including any exacerbating factors. The report of examination and/or addendum opinion should include the complete rationale for all opinions expressed. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Ahmad 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.