Citation Nr: 21009196 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 08-29 101 DATE: February 19, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a back disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from February 1966 to December 1969. In June 2012, September 2014, and June 2017 a Veterans’ Law Judges other than the undersigned, among other things, remanded the above claim. In December 2017, another Veterans’ Law Judge other than the undersigned issued a decision that denied a disability rating greater than 20 percent for the back disability and denied entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 6, 2017. As to the claim for a disability rating greater than 20 percent for the back disability, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2019 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the December 2017 Board decision to the extent that it denied a rating greater than 20 percent for the back disability. In June 2019, yet another Veterans’ Law Judge other than the undersigned remanded the appeal to take the action asked for in the JMPR. Initially, while the Board in November 2018 also remanded claims of service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and for service connection for the purpose of establishing eligibility to treatment under 38 U.S.C. § 1702, these issues will not be addressed below because they have not again been returned to the Board. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). Entitlement to a rating in excess of 20 percent for a back disability is remanded. As to a claim for a rating in excess of 20 percent for a back disability, in accordance with the JMPR the Board remanded the appeal to provide the Veteran with a new VA examination to obtain a medical opinions as to its’ range of motion during flare-ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, while the post-Remand record shows that the Veteran was provided with a VA examination in November 2019, the examiner did not provide the requested range of motion during flare-ups in accordance with Sharp, supra, nor provide an adequate explanation for why he could not provide the requested range of motion estimate. The Board has reached this conclusion because the Court has held that the only time that the Board can be satisfied with a VA examiner stating that he cannot provide the requested medical opinion without the need to speculate is when the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training) and neither of these two fact patterns were reported by the November 2019 VA examiner. Instead, in order to comply with the JMPR and the Court’s holding in Sharp, supra, the examiner should have asked the Veteran to describe the flare-ups he experiences and based on his lay statements and the other evidence of record the examiner should have provided an opinion estimating any additional degrees of limited back motion caused by functional loss during a flare-up and after repeated use over time. It is important for the Veteran to understand that when he filed this claim the decision in Sharp did not exist, causing delay in this case. Therefore, the Board finds that it is compelled to again Remand the appeal to provide the Veteran with a new VA examination to obtain the back’s range of motion during flare-ups in accordance with Sharp, supra, or, if medically impossible, an adequate explanation as to why the range of motion estimates cannot be provided. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). Lastly, the Board notes that some the criteria for rating musculoskeletal disabilities, including the back under 38 C.F.R. § 4.71a, Diagnostic Code 5242, were amended effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Therefore, while the appeal is in Remand status the RO should issue the Veteran a supplemental statement of the case (SSOC) that, among other things, adjudicates under and provides the Veteran with notice of the new musculoskeletal Diagnostic Codes. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Board apologies for the delays in this case. This issue is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his back disability. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all back pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. (c) In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) In order to comply with the JMPR and Sharp, supra, the examiner should also state whether the examination is taking place during a period of flare-up. If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If the examination is NOT taking place during a flare-up, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited back flexion, extension, side to side, and rotation caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation because of a deficiency in the record or the examiner, all appropriate steps should be taken to correct the deficiency. (e) The examiner should also state the number of weeks of incapacitating episodes caused by the back disability in each 12-month period during the pendency of the appeal. (f) The examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by the service-connected disability. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. (Continued on the next page)   If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After undertaking the above development, the RO should issue the Veteran a SSOC that, among other things, adjudicates and provides the Veteran with notice of the new musculoskeletal Diagnostic Codes. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.