Citation Nr: 21006791 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 04-38 885 DATE: February 5, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to July 24, 2006, and greater than 20 percent thereafter, for degenerative disc disease of the thoracic spine on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1998 to October 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted entitlement to service connection for degenerative disc disease of the thoracic spine and assigned a 10 percent disability rating. In an August 2006 rating decision, the RO increased the rating for the Veteran’s thoracic spine disability to 20 percent, effective July 24, 2006. In June 2016, the Board denied the Veteran’s increased rating claim. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In its July 2019 memorandum decision, the Court set aside the Board’s June 2016 decision and remanded the case for readjudication. In March 2020, the Board remanded the appeal to obtain a VA examination that adequately reflects the current nature and severity of the Veteran’s service-connected thoracic spine disability, for the agency of original jurisdiction (AOJ) to consider the Court’s holding in Morgan v. Wilkie, 31 Vet. App. 162, 164(2019), and to obtain updated treatment records since 2006. The full procedural history of the appeal can be found in the Board’s previous October 2014 decision and March 2020 remand. In accordance with the March 2020 Board remand, updated VA treatment records were obtained, and the Veteran was afforded a VA back examination in November 2020. However, the VA examiner failed to address the Veteran’s descriptions of flareups and use in an occupational setting during the examination as specifically requested by the Board in the March 2020 remand directives. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, a remand is required for an addendum opinion that is compliant with Sharp, to ensure substantial compliance with the Board’s March 2020 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, as noted in the March 2020 Board remand, VA’s duty to maximize benefits requires it to exhaust all schedular alternatives including, but not limited to secondary service connection - for rating a disability before an extraschedular analysis is triggered. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). The Veteran has competently and credibly reported additional symptoms associated with his thoracic spine disability that could entitle him to a higher rating, to include depression and sleep impairment. The Board finds that a medical opinion concerning this claimed impairment should be secured. Updated treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159 (e). 3. Then obtain an addendum opinion addressing the severity of the Veteran’s thoracic spine disability during a flare-up. No additional examination is necessary, unless the examiner determines otherwise. The examiner is asked to address the following: Considering the Veteran’s reported history, please provide an opinion describing functional impairment of the Veteran’s thoracic spine disability due to flare-ups and use in an occupational setting, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. In providing the requested opinion, the examiner must take into account the Veteran’s competent and credible report that more motion creates less pain and immobility; thus, in his occupation as an aircraft mechanic, wherein he often works in confined spaces and sometimes remains immobile while working overhead for extended periods of time, he experiences more pain. See, e.g., April 2015 Notice of Disagreement; December 2020 correspondence. 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. A complete rationale shall be given for all opinions and conclusions expressed. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep and acquired psychiatric disorders. The claims file should be made available to and should be reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed sleep and/or acquired psychiatric disorder, to include depression (but excluding his service-connected posttraumatic stress disorder (PTSD): (a) is proximately due to the Veteran’s thoracic spine disability; or (b) has been aggravated (worsened beyond natural progression) by the Veteran’s thoracic spine disability. A complete rationale must be provided for all opinions expressed, taking into consideration the Veteran’s lay statements. See, e.g., November 2004 VA Form 9 (describing sleep problems); August 2006 Statement (stating that his thoracic spine pain makes him angry and irritable); December 2020 correspondence. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.