Citation Nr: 21006715 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-25 731 DATE: February 5, 2021 REMANDED Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease and degenerative joint disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Veteran was provided hearings before the undersigned Veterans Law Judge in July 2015 and May 2018. A copy of the transcripts is of record. This claim was previously before the Board in November 2015, September 2017, and July 2019 at which times it was remanded for additional development. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) was remanded by the Board in July 2019. During the pendency of the appeal, the RO granted TDIU in an October 14, 2020 rating decision, with an effective date of November 2, 2017. The RO then submitted a Supplemental Statement of the Case on October 21, 2020, which included entitlement to an earlier effective date for TDIU and entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease. In November 2020 the Veteran through his attorney filed a VA Form 10182, requesting the Hearing review option, in order to appeal the earlier effective date for the TDIU claim. Therefore, the Board lacks jurisdiction over the claim of entitlement to an earlier effective date for TDIU in this appeal, as TDIU has been granted, and the earlier effective date claim has been opted into the Appeals Modernization Act system. The Board further notes on November 4, 2020, the Veteran’s attorney requested another Board hearing in response to the October 2020 Supplemental Statement of the Case. The attorney states the Veteran disagrees with the conclusions in the SSOC and would like to offer further evidence in the form of his testimony. A Board hearing will be granted to an appellant when requested. See 38 C.F.R. § 20.700. As noted, the Veteran has already presented testimony at two Board hearings before the undersigned VLJ and has provided no adequate reasons why another Board hearing should be scheduled. In addition, the Veteran has not provided why the July 2015, and May 2018 hearings were not adequate for presenting his arguments regarding his appeal. Thus, the Board denies the Veteran’s request for an additional hearing. See also Cook v. Snyder, 28 Vet. App. 330 (2017); see 38 U.S.C. § 7107; 38 C.F.R. §§ 20.707, 20.1304. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease and degenerative joint disease of the lumbar spine is remanded. The Board finds there has not been substantial compliance with its July 2019 remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s previous July 2019 remand of this issue directed that the VA examiner should specifically test the Veteran’s active motion, passive motion, and pain with weight bearing and without weight bearing, as required under Correia v. McDonald, 28 Vet. App. 158 (2016). The Board explicitly stated, “If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).” See Board remand, July 2019. The requested examination was performed in November 2019. The examiner responded to a question in the remarks as to whether there is evidence of pain on passive range of motion by stating, “Cannot be performed or is not medically appropriate,” without further explanation as to why this is the case. Additionally, the examiner responded to a question as to whether there is evidence of pain when the joint is used in non-weight bearing by stating, “Cannot be performed or is not medically appropriate,” again without further explanation as to why this testing cannot be performed. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the testing requirements of Correia v. McDonald. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his lumbar spine disability. The examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weightbearing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If a test could not be performed or is not medically appropriate, the examiner should explain why that is the case. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.