Citation Nr: 21074999 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-16 612 DATE: December 17, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome (IVDS) with degenerative changes prior to September 27, 2021 and in excess of 40 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1980 to March 2000. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. In June 2019, the Board denied an increased disability rating for the Veteran's IVDS with degenerative changes. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the June 2019 decision. The Court granted the JMR in a September 2020 order. In December 2020, the Board remanded the matter for additional development. The matter has now returned to the Board. The Board notes that while on remand status, a November 2021 rating decision increased the Veteran's rating for IVDS with degenerative changes to 40 percent disabling, effective September 27, 2021. As the grant of a 40 percent disability rating, effective September 27, 2021 did not constitute a full grant of the benefits sought, the increased rating issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Entitlement to a disability rating in excess of 20 percent for IVDS with degenerative changes prior to September 27, 2021 and in excess of 40 percent thereafter is remanded. The Veteran is seeking increased disability ratings for his IVDS with degenerative changes. He contends the severity of his back disability is not accurately reflected by his assigned ratings. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In December 2020, the Board noted that the Veteran's July 2011 and March 2018 VA examinations failed to consider potential functional loss during flare-ups. Accordingly, the Board remanded the Veteran's claim for a retrospective addendum opinion to determine the severity of the Veteran's IVDS with degenerative changes at the time of the examinations. Unfortunately, there was not sufficient compliance with the Board's remand directives, as the Veteran was provided a new VA examination in September 2021 to assess the current severity of his back disability and no retrospective opinion was rendered. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). However, failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Board finds that as a retrospective opinion has yet to be rendered, remand once again for an addendum opinion is warranted. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate examiner to retrospectively determine the severity of the Veteran's service-connected IVDS with degenerative changes during the periods of the July 2011 VA examination and the March 2018 VA examination, to the extent possible. The entire claims file, including the May 2018 hearing transcript and a copy of this, and previous Court JMR and Board remands must be made available to, and be reviewed by the examiner. The examiner is asked to respond to the following: a) Retrospectively describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination during the periods when the July 2011 and March 2018 VA examinations were conducted. b) Retrospectively estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements during the periods when the July 2011 and March 2018 VA examinations were conducted. c) Retrospectively estimate the amount in degrees of range of motion lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements during the periods when the July 2011 and March 2018 VA examinations were conducted. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.