Citation Nr: 21006478 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 10-27 081 DATE: February 4, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to January 13, 2012, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from February 2002 to April 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). The Board notes that the Veteran has another appeal pending before the Board in the modernized appeals system regarding the issue of attorney’s fees. That issue will be addressed in a separate decision at another time. Procedural History As detailed below, this matter has a complex procedural history. In a March 2009 rating decision, the RO granted service connection for a lumbar spine disability and assigned a 0 percent rating, effective December 16, 2008. In a May 2009 rating decision, the RO assigned a rating of 10 percent, effective December 16, 2008, for the Veteran’s lumbar spine disability. In a December 2009 rating decision, the RO continued the 10 percent rating assigned for the Veteran’s lumbar spine ability. The Veteran filed a Notice of Disagreement (NOD) in January 2010, a Statement of the Case (SOC) was issued in June 2010, and the Veteran filed a VA Form 9 later in June 2010. In a December 2014 rating decision, the RO granted service connection for sciatic neuropathy of the right lower extremity and assigned a 10 percent rating, effective December 16, 2008. In an April 2015 rating decision, the RO assigned a rating of 20 percent, effective December 22, 2014, for the Veteran’s sciatic neuropathy of the right lower extremity. In a November 2015 rating decision, the RO proposed a decreased rating of 0 percent for the Veteran’s right lower extremity sciatic neuropathy and denied service connection for sciatic neuropathy of the left lower extremity. In a February 2016 rating decision, the RO assigned a rating of 20 percent, effective January 13, 2012, for the Veteran’s lumbar spine disability. In a November 2016 decision, the Board remanded the instant issue on appeal for additional development. In a November 2017 rating decision, the RO again denied service connection for sciatic neuropathy of the left lower extremity. In a July 2018 decision, the Board remanded the instant issue on appeal for additional development and to ensure compliance with its prior remand directives. In an August 2020 rating decision, the RO granted service connection for radiculopathy of the left lower extremity and assigned a rating of 10 percent, effective October 1, 2018. The matter has now returned to the Board for further appellate consideration. 1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to January 13, 2012 and in excess of 20 percent thereafter is remanded. The Veteran asserts she is entitled to an initial rating in excess of 10 percent for her lumbar spine disability prior to January 13, 2012 and in excess of 20 percent thereafter. The Board finds that remand is necessary prior to appellate review of this claim. The Veteran was most recently afforded a VA examination to assess the severity of her lumbar spine disability in October 2018. On review however, the Board finds the October 2018 VA back examination report inadequate. Specifically, although the VA examiner found that pain significantly limited functional ability with flare ups and after repeated use over time, and that the examination was medically consistent with the Veteran’s statements describing functional loss with flare ups and repetitive use over time, the examiner noted she was not able to describe the functional loss in terms of range of motion because the Veteran was not tested during flare ups or after repetitive use over time. This rationale is inadequate in light of Sharp v. Shulkin, as the VA examiner failed to ascertain adequate information – i.e. frequency, duration, characteristics, severity, or functional loss – during flare ups and after repeated user over time by alternative means and then estimate the Veteran’s range of motion due to flare ups and repeated use based on all evidence of record, including the Veteran’s lay information. 29 Vet. App. 26, 36 (2017). The Board also notes that, in its July 2018 decision, it requested that the VA examiner “assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of degrees of range of motion (to the extent possible),” “determine whether he or she can estimate, given the Veteran’s description of symptoms, what her range of motion would be during a flare-up,” and, “[i]f such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the ‘medical community at large,’ and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the examiner.” For these reasons, the Board finds that the October 2018 VA examination was inadequate and did not substantially comply with the Board’s prior remand directives. As such, another VA examination is necessary. Additionally, the Board observes that in an October 2020 VA 21-0820 Report of General Information, the Veteran indicated that although she received VA’s October 2020 letter responding to her Privacy Act request, she has not received the CD noted in the October 2020 letter, which contains the records she requested – the October 2018 VA examination report and medical opinions. As the Veteran is self-represented, and to ensure that she receives the requested records, another copy should be sent to her, and receipt should be confirmed. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran another copy of her records on CD as she indicates that she never received it. See September 2020 Privacy Act request; October 2020 response; and October 2020 Report of General Information. 2. Provide the Veteran with an additional VA examination, if possible, to determine the current severity of her lumbar spine disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to the examiner who completed the October 2018 VA examination report for a thorough review of the record and possible telephone/virtual interview with the Veteran. If this is not possible, refer the case to another appropriate examiner. After a thorough review of the record and examination of the Veteran (if possible), the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of her lumbar spine disability. In doing so, obtain information from the Veteran (and the record) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. Also, indicate any and all associated orthopedic AND neurologic manifestations. (b) Full range of motion (ROM) testing must be performed where possible. The joint involved and the opposing joint should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition to the above testing, the examiner should also address any ameliorative effects of medications the Veteran uses to treat her lumbar spine disability. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. If the examiner determines that flare-ups cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). (d) In accordance with the Board’s July 2018 Remand directives, the examiner should review the prior VA examination reports of record concerning the Veteran’s lumbar spine disability. The examiner should attempt to render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies the ranges of motion of the Veteran’s thoracolumbar spine in active motion, passive motion, weightbearing, and non-weightbearing (including accounting for functional impairment due to pain) at each time the thoracolumbar spine was previously examined with range of motion testing for rating purposes. If it is not possible to provide such opinions or estimations without resorting to mere speculation, the examiner should please so state and provide an explanation as to why such opinions or estimations cannot be given. If an opinion cannot be provided without resort to speculation, the examination should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. A rationale should be provided for each medical opinion presented. 3. Thereafter, readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.