Citation Nr: 21008237 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 13-14 228 DATE: February 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to April 17, 2015, for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active military service from December 1964 to December 1966. This matter come before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision issued by the Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2014. A transcript of that hearing has been associated with the claims file. In a June 2016 decision, the Board, in pertinent part, denied a rating in excess of 10 percent for a lumbar spine disability prior to April 17, 2015, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2018 Memorandum Decision, the Court, in pertinent part, vacated the Board’s denial of those issues and remanded the issues to the Board for action consistent with the Memorandum Decision. In May 2019, the Board remanded the claims for further development consistent with the Memorandum Decision. Subsequent to an October 2020 supplemental statement of the case (SSOC), the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and disagreed with the decision to continue to deny entitlement to a TDIU. With the submission of that form, the Veteran opted into the modernized review system. As such, that issue is not currently before the Board and will be the subject of a subsequent Board decision. In its October 2018 Memorandum Decision, the Court vacated the Board’s June 2016 decision that denied, in part, a rating in excess of 10 percent prior to April 17, 2015, for a lumbar spine disability and remanded the matter for a new VA examination. In this regard, the Court found that the Board erred in its June 2016 decision when it relied on an inadequate December 2011 VA examination that overlooked the Veteran’s statement that he was immobile during flare-ups. Therefore, the Board remanded the issue to provide the Veteran a VA examination to obtain a retrospective VA medical opinion regarding the level of severity for all impairment resulting from the Veteran’s service-connected lumbar spine disability prior to April 17, 2015. The Veteran was afforded a VA examination in November 2019. However, the examiner failed to provide the requested retrospective opinion. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right of compliance with the Board’s remand directives, and imposes upon the Board a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the November 2019 VA examination report does not comply with the directives outlined in the May 2019 remand, the Board finds that a remand for a new VA medical opinion for the Veteran’s service-connected lumbar spine disability prior to April 17, 2015, is warranted. The matter is REMANDED for the following action: 1. Submit the Veteran’s claims file to the examiner who conducted the November 2019 VA examination or an examiner with similar expertise to obtain a retrospective medical opinion regarding the level of severity for all impairment resulting from the Veteran’s service-connected lumbar spine disability prior to April 17, 2015. The claims file must be made available to, and reviewed by the examiner. The examiner should provide an opinion determining the level of severity of all impairment resulting from the Veteran’s service-connected lumbar spine disability prior to April 17, 2015. In rendering the requested opinion, the examiner should specifically address the Veteran’s statement during the December 2011 VA examination that he was immobile during flare-ups. The rationale for all opinions expressed must be provided. If the examiner determines that another examination is necessary in order to provide the requested opinion, the Veteran should be scheduled for an appropriate examination. 2. Confirm that the VA medical opinion provided comports with this remand, and undertake any other development determined to be warranted. (Continued on the next page)   3. Then, readjudicate the remaining claim on appeal. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.