Citation Nr: 21074350 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-37 121 DATE: December 15, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 2004 to November 2008. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of an August 2013 rating decision that reduced the rating for the Veteran's lumbar DDD (with sciatica) from 20 to 10 percent, retroactively from June 21, 2013. In October 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. An April 2018 Board decision restored a 20 percent rating for the lumbar DDD, effective from the date of reduction, and remanded for further development the matter of entitlement to a rating in excess of 20 percent for the disability (focusing particularly on radiculopathy and whether a temporary total rating for convalescence may have been warranted). A December 2020 Board decision denied entitlement to a rating in excess of 20 percent for the lumbar spine DDD. The Veteran appealed that decision to the CAVC. A September 2021 CAVC Order vacated the Board's December 2020 decision that denied a rating in excess of 20 percent for the Veteran's lumbar spine DDD and remanded it to the Board for further development and re-adjudication consistent with terms of a September 2021 Joint Motion for Remand (JMR). In the September 2021 JMR, the parties agreed that vacatur and remand was required because the Board erred by not ensuring that VA complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) to provide an examination that was adequate for rating purposes. The June 2013 VA examination was inadequate because the examiner did not provide an estimate as to the degrees of loss of range of motion during flare-ups or when used repeatedly over time and did not indicate if the testing requirements under 38 C.F.R. § 4.59 were performed. Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017); Correia v. McDonald, 28 Vet.App. 158, 168-69 (2016). The August 2019 VA examination was inadequate because the examiner did not indicate the point at which pain began during range-of-motion testing, despite noting the presence of pain during range-of-motion testing for forward flexion. Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011). Finally, the April 2020 medical opinion did not include an examination that would cure the errors identified, and the provider simply opined that "[r]ecords do not show that the back condition is worse than the 8/19 exam." The Board notes that VA back examinations were completed in March 2021 and August 2021; however, these examinations were also inadequate because although the examiners noted the presence of pain during range of motion testing on various movements (forward flexion) they did not note in degree(s) the extent of limitation of motion specifically attributable to such pain. Additionally, neither examiner provided an opinion that addressed the severity of the Veteran's flare-ups throughout the remainder of the period on appeal from May 29, 2011. Consequently, the deficiencies identified by the parties to the JMR have not been corrected. Therefore, the Board finds remand for an examination to ascertain the current severity of the low back disability and a retrospective opinion (from May 29, 2011) which identifies, to the extent possible, the degree of additional range of motion loss during flare-ups or with repeated use over time (including in a day-to-day setting) based on contemporaneous clinical records, the Veteran's reports of functional loss during flare-ups, and the examiner's own medical background and knowledge of lumbar spine functional impairment (given the Veteran's specific historical presentation) is necessary. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his low back disabilities. 2. Arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected low back disability, any (found) associated left lower extremity neurologic abnormalities [there is already a separate rating for right lower extremity radiculopathy], and for a retrospective opinion regarding the severity of the disability. The Veteran's record (to include this remand, and the June 2013, August 2019, March 2021, and August 2021 VA spine examination reports) must be reviewed by the examiner in conjunction with the examination. All pertinent findings should be described in detail. (a) The findings must include reports of range of motion studies and the examiner should specify whether and at what point during range of motion the Veteran experienced limitation of motion due to pain, weakness, incoordination, and/or fatigue, including with repeated use over time and during flare-ups. (b) The examiner should note whether or not there were incapacitating episodes of disc disease (periods of bed rest prescribed by a physician), and if so, their frequency and duration, and whether the spine is ankylosed. (c) The examiner should note any objective neurological abnormalities, particularly any left lower extremity radiculopathy (identifying the nerve or nerves involved); the impairment noted should be characterized as mild, moderate, moderately severe, or severe incomplete paralysis, or as complete paralysis, and notation should be made whether any nerve involvement is wholly sensory. (d) The examiner must also furnish a retrospective opinion addressing the functional loss due to the service-connected low back disability during flare-ups and when the back was used repeatedly over time. On review of the claims file and interview of the Veteran, the examiner should: (i) Describe how/estimate the extent to which the Veteran's low back disability limited his functional ability due to pain, weakness, fatigability, or incoordination during flare-ups or with repetitive use throughout over time during the period from May 29, 2011 to present. The determination should be portrayed in terms of the degree of additional range of motion loss due to pain, weakness, fatigability, or incoordination during flare-ups or with repetitive use over time. (ii) If such findings cannot feasibly be made, or if an estimate of such findings in reliance on the Veteran's statements and based on review of contemporaneous treatment reports and examinations cannot be given, there must be a full explanation why that is so. (iii) Regarding flare-ups causing additional loss of motion, a response that the requested opinion cannot be provided "without resort to mere speculation" because there was insufficient medical evidence upon which to rely of itself is insufficient because it fails to explain why such loss feasibly could not be estimated. (For example, what further medical or lay evidence is necessary to feasibly enable the retroactive estimates, and may the Veteran's own contemporaneous descriptions of his flare-ups (and level of functioning during flare-ups be relied upon to form a conclusion?) Complete rationale should accompany all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.