Citation Nr: 21076145 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-05 773A DATE: December 22, 2021 REMANDED Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease, lumbar spine is remanded. Entitlement to service connection for a right foot condition is remanded. REASONS FOR REMAND This appeal has an extensive procedural history that includes a July 2019 Board remand and June 2020 Joint Motion for Partial Remand (JMR) granted by the U.S. Court of Appeals (Court) to ensure the Veteran has been provided an adequate VA examination in conjunction with both claims on appeal. Unfortunately, for reasons explained below, an additional remand is needed. 1. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease, lumbar spine is remanded. In the June 2020 JMR, the parties agreed that the Veteran should be afforded an examination that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017), as the August 2015 VA examiner did not provide an estimate with respect to additional range of motion despite the Veteran's report of experiencing flare-ups. Following a February 2021 remand, the Veteran was afforded a new VA back examination, but he denied having flare-ups of back pain. As a result, the examiner stated that any measurement on a hypothetical flare-up would be purely speculative as one cannot estimate range of motion on a hypothetical situation. See June 2021 VA examination. However, the February 2021 remand directed that the examiner provide an estimate of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. Therefore, the Board finds the June 2021 VA examination was inadequate, as a retrospective opinion was needed regarding any additional functional loss during flare-ups based on the information provided during the August 2015 VA examination. Accordingly, a remand is needed. 2. Entitlement to service connection for a right foot disability is remanded. In December 2019, a VA physician provided a negative nexus opinion with respect to the Veteran's right foot disability on the partial basis that, while the Veteran received treatment for a right foot injury during service, there was no further medical evidence documenting chronicity of care during service. This opinion is incomplete, however, because the Veteran has asserted that his right foot pain began during service and continued to get worse over the years, despite the lack of treatment after service. See October 2020 representative statement. The Board notes the Veteran is competent to report the continued nature of his right foot pain after service and, in this regard, the Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Therefore, an addendum opinion is needed that addresses whether a chronic right foot disability was manifest during service and continued thereafter. Additionally, the record reflects that the Agency of Original Jurisdiction (AOJ) last adjudicated the right foot claim in an August 2020 Supplemental Statement of the Case (SSOC). Since that time, additional VA treatment records have been added to the claims file that are pertinent to the claim. On remand, the AOJ will have an opportunity to consider the new evidence of record and issue a new SSOC. The matters are REMANDED for the following action: 1. Obtain an opinion regarding the Veteran's lumbar spine disability. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the complete record, the examiner is asked to address the following with respect to the lumbar spine disability: a) Does pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups? b) If so, describe any additional impairment in terms of the degree of additional range of motion loss based on the descriptions provided by the Veteran regarding the severity, frequency, and durations of his flare-ups. If the examiner concludes he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. In so doing, the examiner should explain whether the inability to provide an estimate is the result of the need for additional information or a limitation of the medical community at large (as opposed to lack of expertise, insufficient testing, or unprocured testing by the examiner). 2. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran's claimed right foot disability. The need for an examination is left to the discretion of the examiner. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. After reviewing the claims file, the examiner is requested to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current right foot disability was incurred in or as a result of his military service, to include the complaints and treatment for right foot pain during service? In answering the foregoing, the examiner must consider and address the service treatment records, the post-service treatment records, and the Veteran's report of continued right foot pain since service. A well-reasoned rationale must be provided in support of any opinion offered and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the entire record, including the VA treatment records added to the claims file since the issuance of the August 2020 SSOC, and readjudicate both issues on appeal. If the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.