Citation Nr: 21006453 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 11-17 764 DATE: February 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to February 16, 2011, in excess of 20 percent prior to April 13, 2017, and in excess of 40 percent thereafter for multi-level degenerative disc disease is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1983 to March 1985. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May of 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This claim was previously before the Board in January 2017, January 2018, and November 2019; at which time they were remanded for further development. The claim has now returned to the Board for further appellate action. 1. Entitlement to a rating in excess of 10 percent prior to February 16, 2011, in excess of 20 percent prior to April 13, 2017, and in excess of 40 percent thereafter for multi-level degenerative disc disease is remanded. While the Board sincerely regrets further delay in this matter, additional development is required before the Veteran’s claim may be adjudicated on the merits. The Board notes that the January 2020 VA examination and the August 2020 addendum opinion does not adequately address all of the issue noted in the November 2019 Board remand. The January 2018 and the November 2019 Board remands requested an opinion addressing two precedential opinions. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (the Court) held that in order for an examination to be adequate, it must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. A review of the Veteran’s VA examinations indicates that retroactive opinion is warranted in light of Correia. The Court’s recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) also requires that the claim be remanded. In Sharp, the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 10. While flare-ups are noted on the Veteran’s VA examinations, opinions with respect to the extent of functional impairment are not present and therefore, a retroactive opinion is warranted in light of Sharp. The August 2020 VA addendum opinion did not provide adequate opinions to comply with Correia and Sharp as ordered in the Board remands. Stegall v. West, 11 Vet. App. 268 (1998). In fact, the VA examiner concluded the addendum opinion by stating that the claim should be referred to a specialist. Accordingly, an addendum by an orthopedic specialist with a retrospective opinion is required in order to fully comply with the Board’s previous remand. The mater is REMANDED for the following action: 1. An addendum must be obtained by an orthopedic specialist must be obtained. The orthopedic specialist shall determine the severity of the Veteran's service-connected back disability and provide a retrospective opinion of the severity of the disability prior to April 13, 2017. The Veteran’s entire claims file, to include a copy of this decision, should be made available to the specialist. Following a complete review of the record, the specialist is asked to determine if an examination of the Veteran is necessary. The specialist should provide the following opinions: a. Determine whether the Veteran’s range of motion results from the December 2010 and January 2014 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the specialist’s best ability, the additional range of motion loss should be described in degrees. If the specialist is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. b. The specialist should also provide an opinion regarding the extent of the Veteran’s functional loss as described in her December 2010 and January 2014 VA examinations, and her pertinent lay statements from the May 2014 travel board hearing. To the specialist’s best ability, the additional range of motion loss should be described in degrees based on that information. If the specialist is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. The specialist is advised that the Veteran is competent to report injuries and symptoms, and her reports must be considered and discussed in formulating the requested opinions. If her reports are discounted, the specialist should provide an explanation for doing so. The Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, Associate 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.