Citation Nr: 21009629 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-06 820 DATE: February 23, 2021 REMANDED Entitlement to a rating in excess of 20 percent for the postoperative residuals of intervertebral disc syndrome (IVDS) of the lumbosacral spine with neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to February 1969. The Veteran’s claim was previously before the Board in March 2018 but was remanded for additional development. Specifically, the Veteran’s claim was returned to the Agency of Original Jurisdiction (AOJ) with directives to schedule the Veteran for a VA thoracolumbar spine conditions examination to determine the current severity of his service-connected IVDS. In October 2019, the Veteran completed the required examination. As discussed in detail below, the Board finds that the October 2019 VA thoracolumbar spine conditions examination is inadequate. Accordingly, the Board finds there has not been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to a disability rating in excess of 20 percent for the postoperative residuals of IVDS of the lumbosacral spine with neuropathy. As noted above, the Veteran’s claim was before the Board in March 2018. The Board remanded the Veteran’s claim to the AOJ to schedule the Veteran for a VA thoracolumbar spine examination to determine the severity of his IVDS. The Veteran underwent a VA examination in October 2019. The report contains conflicting information that needs to be resolved. The examiner stated that the Veteran had forward flexion to 40 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. However, the examiner also concluded that the Veteran had favorable ankylosis of the entire thoracolumbar spine. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). On remand, a clarification opinion should be obtained so that an examiner can explain how the Veteran has ankylosis when he retains movement in his spine and is able to perform extension, flexion, lateral rotation, and lateral flexion. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to the examiner who conducted the October 2019 VA examination. If that examiner is not available, provide the claims file to a suitable clinician. The examiner should review the claims folder. The examiner must clarify the conflicting information in the October 2019 examination report. The Veteran performed ranges of motion at his examination and therefore retained mobility in his spine. However, the report also noted that he had favorable ankylosis of the entire thoracolumbar spine. The examiner should explain which information is accurate and explain why. If the examiner is unable to provide the requested clarification or finds that a new examination is necessary, a new examination should be scheduled. a. If a new examination is conducted, in reporting the results of range of motion testing, the examiner should identify any objective evidence of pain in the back. The VA examiner should further test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing, he or she should clearly explain why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.