Citation Nr: 21011152 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 10-24 783 DATE: March 1, 2021 REMANDED Entitlement to initial ratings for service-connected lumbar spondylosis with neural foramina narrowing at L4-L5 and L5-S1 in excess of 10 percent prior to September 4, 2009 and 20 percent from September 4, 2009 to May 6, 2015 is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to March 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for chronic low back pain and assigned a 10 percent rating from September 24, 2007. The Veteran disagreed with the assigned rating and this appeal follows. A Decision Review Officer (DRO) hearing was conducted in August 2012. The transcript of the hearing is of record. When the Veteran perfected his appeal in May 2010, he requested a Board hearing at his local RO office. He subsequently withdrew his request for a Board hearing in December 2017. During the pendency of the appeal, an August 2015 rating decision increased the lumbar spondylosis disability from 10 percent to 20 percent, effective September 4, 2009, and to 40 percent from August 5, 2015. In an April 2019 decision, the Board denied a rating in excess of 10 percent from September 24, 2007 to September 4, 2009 and in excess of 20 percent from September 4, 2009 to May 6, 2015 for the service-connected lumbar spondylosis disability. The Board decision also determined that the proper effective date for the 40 percent rating was May 6, 2015 and then denied a rating in excess of 40 percent from that date. In addition, the April 2019 Board decision denied entitlement to a TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order granting a January 2020 Joint Motion for Partial Remand (Joint Motion), the Court partially vacated the Board’s April 2019 decision and remanded the matters of entitlement to initial ratings for lumbar spondylosis in excess of 10 percent prior to September 4, 2009 and 20 percent from September 4, 2009 to May 6, 2015 as well as entitlement to a TDIU for further development in compliance with the directives specified in the Joint Motion. The Joint Motion did not disturb the Board’s denial of an initial rating in excess of 40 percent from May 6, 2015 for lumbar spondylosis. As such, that portion of the Board's April 2019 decision was not subject to the Joint Motion, is no longer in appellate status, and will remain undisturbed. In a July 2020 Board decision, the claims were remanded for further evidentiary development in compliance with the Joint Motion. A supplemental statement of the case (SSOC) was issued in September 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to initial ratings for service-connected lumbar spondylosis in excess of 10 percent prior to September 4, 2009 and 20 percent from September 4, 2009 to May 6, 2015 is remanded. In the July 2020 decision, the Board remanded the claim of entitlement to higher initial ratings for service-connected lumbar spondylosis for a retrospective medical opinion concerning the range of motion of the Veteran’s thoracolumbar spine (a) during a flare-up of symptoms, (b) on passive and active motion, and (3) in weight-bearing and nonweight-bearing positions, for each VA spine examination undertaken prior May 2015 (i.e., the March 2008 and September 2009 VA spine examinations) in compliance with the Joint Motion. Pursuant to the Board Remand, a VA medical opinion was obtained in September 2020. Critically, as to question of the Veteran’s flare-up symptoms, the VA examiner stated, “[b]ased on the available medical records review, there is inconsistency in recorded ROM of the back, and the Veterans subjective reports regarding assistive devices, flare-ups, functional loss and reported symptoms.” He further opined, “[t]here is no objective pathology to explain the Veterans subjective symptoms and or inconsistent ranges of ROM. As such, it is not possible to provide an accurate opinion, without mere of speculations, due to lack of accuracy, and inconsistency, in medical records.” Additionally, as to the question of the Veteran’s functional impairment on passive and active motion, the September 2020 VA examiner stated, “[p]assive ROM of the back are not usually performed, upon C&P exams as passive ROM for the spine cannot be performed without significant burden to the provider and the Veteran. Based on the available medical records review, there is inconsistency in recorded ROM of the back, and the Veterans subjective reports regarding assistive devices, flare-ups, functional loss and reported symptoms.” As to the question of the Veteran’s functional impairment on weight-bearing and nonweight-bearing, the VA examiner indicated, “[n]on-Weight Bearing ROM of the back are not feasible to perform, during C&P exams as non-weight bearing ROM for the spine cannot be performed without significant burden to the provider and the Veteran.” The opinion rendered by the September 2020 VA examiner is admittedly speculative and fails to address the functional impact of the Veteran’s lumbar spondylosis during flare-ups, with passive and active motion, and with weight-bearing and nonweight-bearing. Accordingly, due to the inadequacy of the September 2020 VA medical opinion, the RO failed to ensure substantial compliance with the Board’s July 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter must therefore be remanded in order to afford the Veteran a new VA medical opinion as to his higher initial ratings claim. 2. Entitlement to a TDIU is remanded. The matter of entitlement to a TDIU is inextricably intertwined with the matters of entitlement to higher initial ratings for service-connected lumbar spondylosis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, this claim must also be remanded. The matters are REMANDED for the following action: Refer the VA claims file to a medical professional with appropriate expertise, other than the examiner who provided the September 2020 medical opinion, to obtain an opinion as to the claim of entitlement to higher initial ratings for lumbar spondylosis in excess of 10 percent prior to September 4, 2009 and 20 percent from September 4, 2009 to May 6, 2015. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then provide retrospective opinions concerning the estimated range of motion of the Veteran's thoracolumbar spine (a) during a flare-up of symptoms, (b) on passive and active motion, and (3) in weight-bearing and nonweight-bearing positions, for each VA spine examination undertaken prior May 2015 (i.e., the March 2008 and September 2009 VA spine examinations). In addressing the above, the VA examiner is asked to discuss how these findings were ascertained in retrospect, citing to specific evidence within the Veteran's file. While current findings are not at issue in the present case, if the VA examiner finds that a current physical examination or interview with the Veteran would assist him or her in providing the requested retrospective opinions, such should be scheduled, and the Veteran must be notified of the time and place to report. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.