Citation Nr: 21076504 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-29 641 DATE: December 27, 2021 REMANDED Entitlement to an initial disability rating for degenerative joint disease (DJD) of the thoracolumbar spine in excess of 10 percent prior to April 2017 is remanded. Entitlement to a disability rating in excess of 20 percent for DJD of the thoracolumbar spine from April 17, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1995 to July 2001 and from March 9, 2003 to March 30, 2003. This case comes before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The Veteran's claims file contains a copy of the hearing transcript. In June 2020, the Board denied increased ratings for DJD of the lumbar spine. In July 2021, the Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veteran's Claims (Court), which resulted in a July 2021 Joint Motion for Remand (JMR). Discussion The parties to the JMR found that the Board erred in failing to address whether May 2006, June 2007, and April 2011 VA examinations were adequate. The parties noted that a VA examiner (of musculoskeletal disabilities) must be asked to express and opinion about whether pain could significantly limit functionally ability during flare-ups and with repeated use over time. See 38 U.S.C. § 7104(d)(a); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). At the May 2006 examination, the Veteran reported constant and localized pain of the thoracolumbar spine, including stiffness with changes in weather; weakness with increased use; and pain elicited upon physical activity relieved through use of medication and rest. At the June 2007 examination, the examiner noted the Veteran's reports of intermittent back pain throughout the week upon physical activity relieved through use of medication and rest. And, at the April 2011 examination, the examiner documented the Veteran's report that she experienced constant low back pain, exacerbated by stress, relieved by medication and rest. These examiners did not provide sufficient guidance as to the nature of these exacerbations and whether they represented flare-ups or losses upon repetitive use over time. Consequently, the examiners did not estimate whether, if any, losses in degrees of ranges of motion (ROM) occurred. The parties directed the Board to consider whether the afore-noted examinations were adequate (in light of these complaints) and, if not, whether a retrospective opinion was necessary to make a fully informed decision. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994); see also Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Considering the identified deficiencies in these three VA examination reports, the Board finds that a retrospective opinion is in order. Id. As to the period from April 17, 2017, the parties to the JMR found that the Board erred in failing to address a July 2018 VA treatment record in which the Veteran's flexion was to 19 and whether this finding indicated greater severity of symptomatology. (Upon review of this record, it remains unclear whether the clinician referred to degrees or a percentage.) In a September 2021 brief to the Board, the Veteran's representative also noted that the Board did not address entries in private chiropractic records dated November 30, 2018 and December 7, 2018 in which the chiropractor noted lumbar spine range of flexion as 25 degrees. The representative did not mention that on January 2, 2019, the chiropractor noted 45 degrees lumbar flexion. Here too, an opinion is necessary to provide a fully informed decision. Ardison, 6 Vet. App. 405. The matters are REMANDED for the following actions: 1. Contact the Veteran to ascertain whether there are outstanding private records related to the two issues noted above. If so, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Arrange for a VA retrospective opinion with an appropriate VA clinician. The clinician must review the claims file and indicate a review in the body of the opinion. The clinician must address, with specificity, all reports of symptoms (both lay and medical), including those noted above. Upon completion of the above, the clinician should determine, with as much accuracy as possible within a retrospective context, the respective severity of the Veteran's DJD of the thoracolumbar spine prior to April 2017 and from April 2017. The clinician must provide an opinion, as is practicable in a retrospective context, for the losses in degrees of ranges of motion, for flare-ups and upon repetitive use over time (if such are ascertainable) at the time of the VA examinations in May 2006, June 2007, and April 2011. If the clinician ascertains losses during flare-ups and upon repetitive use over time and is unable to calibrate such losses into degrees (of ranges of motion), the clinician must explain why such a "calibration" cannot be derived based upon the available evidence of record. The clinician must address the July 2018 VA treatment record in which the Veteran's flexion was to "19," and the November 2018 to January 2019 private chiropractor's assessments of 25 degrees lumbar flexion. The clinician should determine whether these findings (possibly in degrees or percentage) indicate a worsening of the Veteran's DDD of the thoracolumbar spine from April 17, 2017. (continued next page) 4. The clinician must provide complete and clear rationales for the conclusions reached. The clinician should provide explanations that consider the record and pertinent medical principles. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.