Citation Nr: 21009730 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-30 323 DATE: February 23, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for status post lumbar spine placement of metallic basket at L1 vertebral body and fusion with intervertebral disc syndrome (IVDS) (“lumbar spine disability”) prior to January 31, 2018, is remanded. Entitlement to an evaluation in excess of 20 percent for status post lumbar spine placement of metallic basket at L1 vertebral body and fusion with intervertebral disc syndrome (IVDS) since January 31, 2018, is remanded. Entitlement to an evaluation in excess of 10 percent for left lower extremity femoral nerve radiculopathy is remanded. Entitlement to a compensable evaluation for left lower extremity sciatic nerve radiculopathy prior to January 31, 2018, is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Army from July 1987 to July 2008. This matter is on appeal from an August 2008 rating decision. The Veteran was afforded a November 2011 hearing before the undersigned Judge. A transcript of the hearing has been associated with the record. The Board remanded this appeal in March 2012 and December 2017 for additional development and examination. The Board finds that remand is warranted for additional development. In an October 2019 Board decision, the Board denied an increased evaluation in excess of 10 percent for the Veteran’s lumbar spine disability prior to January 31, 2018 and for an increased evaluation in excess of 20 percent for the Veteran’s lumbar spine disability since January 31, 2018. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in a September 2020 decision, vacated and remanded the issues to the Board for re-adjudication. The Court noted the Veteran was afforded a March 2008 VA examination that predated decisions made in Mitchell, Jones, Correia, and Sharp. The Veteran was next afforded June 2012 VA examination that predated Correia and Sharp. The Court noted the VA examiner made inconsistent findings where they did not find additional limitation of movement in range of motion after repetitive use testing but later found the Veteran with less movement after repetitive use. The Court found the Veteran was afforded a January 2018 VA examination and that the VA examiner found the Veteran experienced pain on weightbearing but did not address range of motion testing for passive and active motion in weight-bearing and non-weight bearing; the Court also noted the VA examiner was unable to state on the Veteran’s limitation during flareups without mere speculation. As such, the Board instructed the Board to obtain an examination compliant with the decision made in Mitchell, Jones, Correia, and Sharp. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Jones v. Shinseki, 23 Vet. App. 382 (2010); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). In addition, the Court noted that if possible, the Board is to also obtain a retrospective opinion for the period on appeal. See Chotta v. Peake, 22 Vet. App. 80 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). Accordingly, the Board finds that remand is warranted to obtain a new examination and opinion to determine the severity of the Veteran’s back disability. As the development for the remanded claims are relevant to the Veteran’s claims for an increased evaluation for left lower extremity radiculopathy, the issues are inextricably intertwined with the increased rating claim being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Schedule the Veteran for an appropriate VA medical examination with a qualified examiner to assess the severity of the Veteran’s lumbar spine disability. The Veteran’s virtual claims folder must be made available for the examiner’s review. Upon examination of the record and the Veteran, the examiner should address the following: (a.) The examiner should test the Veteran’s range of motion in active motion and passive motion, and state whether there is pain with weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (b.) The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. (c.) If an examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. (d.) The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. (e.) If the Veteran is not suffering from a flare-up of his lumbar spine disability at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of flare-ups in terms of range of motion on the basis of that information. (f.) The examiner is advised that CAVC has held that the examiner cannot refuse to give an opinion, citing speculation, merely because the reported flareups are not directly observed, but can only do so if the “inability to provide an opinion without resorting to speculation ‘reflect[s] the limitation of knowledge in the medical community at large’“ as opposed to insufficient information or unprocured testing. If that is the case here, the examiner should indicate such in the report. (g.) The examiner should also provide a retrospective opinion as to the nature and severity of the Veteran’s lumbar spine disability and include a discussion of the Veteran’s documented medical history and complaints regarding the severity of his lumbar spine disability. (h.) The examiner should describe all symptomatology due to the Veteran’s lumbar spine disability during the appeal period to include prior to and after January 31, 2018. The examiner must comment as to whether there was pain, weakened movement, excess fatigability, or incoordination on movement. Based on the medical records and the Veteran’s reports, the examiner should also note the degree to which any additional range of motion was lost during this time due to (1) pain on use, including during flare-ups and following repetitive use; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (i.) The examiner should also glean information from the Veteran and his medical records regarding whether his back disability had flare-ups during this time and, if so, the flares’ severity, frequency, duration, and functional loss manifestations. The examiner should estimate the degree to which range of motion was lost during a flare-up and must describe any other functional impairment due to flare-ups. Efforts to obtain such information must be documented. If the Veteran denies any additional pain and/or functional limitation, such should be noted in the report (j.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (k.) The examiner should provide a complete rationale for any opinion provided, and if the examiner is unable to provide any opinion request, then the examiner should state so and why. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.