Citation Nr: 21076992 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-03 939 DATE: December 28, 2021 REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) with herniated disc L5-S1 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to August 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017 the Veteran testified at a hearing before the undersigned Veteran's Law Judge. A transcript of that proceeding is of record. The issue on appeal was previously before the Board in June 2018 when the claim was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In July 2019, the Court vacated the Board's June 2018 decision and remanded it back to the Board for adjudication consistent with the Court's decision. In March 2020, the Board remanded the claim for further development. As noted in the Board's previous March 2020 remand, in July 2019, the Court determined that the Board erred in relying on the report of a September 2014 VA examination which failed to adequately consider flareups associated with the service-connected back disorder. The Court directed that the Board remand the claim to obtain an opinion which addresses flareups of the Veteran's back symptomology. Notably, at the February 2017 Board hearing, the Veteran testified that his back pain would become so bad that he could not move it "at all." The October 2021 post-remand VA examination does not address the Veteran's flare-ups. The examination report explains that the Veteran did not report any flare-ups. However, this does not comply with the Board's prior remand instructions. It is not clear to the Board whether the Veteran reported he did not have flare-ups, at all, or during the examination. The Board previously requested the examiner to attempt to ascertain information from the Veteran if the examination was not conducted during a flare-up. Moreover, the Board specifically requested the examiner to provide an estimate of additional functional loss in terms of range of motion based on the Veteran's statements, available medical records, and other relevant sources. As the October 2021 DBQ did not provide an estimate of the Veteran's loss of range of motion during flare-ups, the Board finds this does not substantially comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). This evidence is pertinent to the claim. Notably since the prior remand, the United States Court of Appeals for Veterans Claims (CAVC) found in Chavis v. McDonough, the criteria for a rating based on ankylosis of the spine may be met by demonstrating the functional equivalent. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Therefore, ankylosis can be found by evidence demonstrating its functional loss consistent with that contemplated by ankylosis. As the Veteran has reported that he sometimes cannot move his spine "at all" during the period on appeal, an opinion as to the loss of range of motion during flare-ups is still needed. Accordingly, a remand is needed so that an opinion may be obtained as to the loss of range of motion during the Veteran's flares of his lumbar spine. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the question below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. If the Veteran fails to provide information regarding his flares, the opinion requested below should be answered based on the evidence of record. After reviewing the record, the examiner is requested to provide the following opinion: (Continued on the next page) Provide an estimate of additional functional loss during flare-ups, in terms of range of motion based on the Veteran's statements, available medical records, and other relevant sources. The examiner should consider and discuss the Veteran's statements at the October 2017 Board hearing that during flares he could not move his back at all. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.