Citation Nr: 21011441 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-26 864 DATE: March 1, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease (DJD) of the thoracolumbar spine prior to June 20, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from September 1974 to September 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for degenerative joint disease of the thoracolumbar spine and assigned an initial 10 percent rating, effective from September 18, 2012. The Veteran’s timely Notice of Disagreement (NOD) was received by VA in January 2014. In June 2014, the RO issued a Statement of the Case (SOC). In July 2014, the Veteran perfected a timely appeal via his submission of a VA Form 9. In August 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is a part of the record. In a February 2018 decision, the Board awarded an initial 40 percent rating for the Veteran’s service-connected low back disability from June 20, 2017, as well as separate 20 percent ratings for right and left lower extremity radiculopathy, also effective June 20, 2017. The Board remanded the issue of entitlement to an initial rating in excess of 10 percent for the Veteran’s low back disability prior to June 20, 2017. In February 2020, the Board again remanded the matter for further evidentiary development. A supplemental statement of the case (SSOC) was issued in July 2020. The matter has been returned to the Board for further appellate proceedings. 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease (DJD) of the thoracolumbar spine prior to June 20, 2017. In the February 2018 remand, the Board noted that the Veteran had been provided a VA examination in June 2013 at which time he reported flare-ups of his lumbar spine disability. However, the June 2013 VA examiner did not estimate the additional limitation of motion during the reported flare-ups, if any. The examiner opined that he was unable to provide an opinion regarding functional ability during flare-ups without mere speculation as the Veteran was not experiencing a flare-up at the time of the examination. The Board therefore determined that the June 2013 VA examiner’s findings were inadequate to adjudicate the Veteran’s thoracolumbar spine disability for the period prior to June 20, 2017 in light of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (holding that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-up, i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner). Accordingly, in February 2018, the Board remanded the matter to obtain a retrospective opinion to ascertain the severity and manifestations of the service-connected thoracolumbar spine disability prior to June 20, 2017. The examiner was instructed to delineate all symptoms associated with the Veteran’s thoracolumbar spine disability. The examiner was directed to estimate any functional loss in terms of additional degrees of limited motion of the lumbar spine during flare-ups and repetitive use over time as reported by the Veteran, including during the June 2013 VA examination. If the examiner was unable to provide the above-requested opinion without resorting to speculation, he/she was instructed to state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. Pursuant to the Board Remand, a VA medical opinion was obtained in October 2019. The examiner indicated that she had reviewed the Veteran’s claims file, including the Board Remand instructions. She indicated, “[a]fter reviewing the claimant’s history, current examination findings, relevant evidence of record, and utilizing my own clinical judgment and medical expertise, I am unable to determine [range of motion] without mere speculation.” The examiner explained, “[t]he claimant was not examined during repeated use over a period of time and could not describe or demonstrate the decrease ROM with repeated use over time or during flare-ups.” Critically, as noted in the January 2020 Appellant’s Brief, the October 2019 VA examiner’s opinion essentially mirrored the findings of the June 2013 VA examination report, which the Board had previously determined to be inadequate. The October 2019 VA examiner failed to estimate any functional loss in terms of additional degrees of limited motion of the lumbar spine during flare-ups and repetitive use over time as reported by the Veteran. In addition, the October 2019 examiner failed to state whether all procurable evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. Accordingly, in February 2020, the Board again remanded the matter for a VA retrospective opinion to ascertain the severity and manifestations of the service-connected thoracolumbar spine disability prior to June 20, 2017. The examiner was once again instructed to delineate all symptoms associated with the Veteran’s thoracolumbar spine disability. The examiner was directed to estimate any functional loss in terms of additional degrees of limited motion of the lumbar spine during flare-ups and repetitive use over time as reported by the Veteran, including during the June 2013 VA examination. If the examiner was unable to provide the above-requested opinion without resorting to speculation, he/she was instructed to state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. Pursuant to the February 2020 Board Remand, a VA medical opinion was obtained in March 2020 and a VA addendum report was obtained in July 2020. The March 2020 VA medical opinion does not address the remand instructions regarding providing a medical opinion as to the severity and manifestations of the service-connected thoracolumbar spine disability prior to June 20, 2017. The VA medical opinion also does not address functional loss during flare-ups. The July 2020 VA addendum reports on the March 2020 range of motion testing after repeated use but fails to provide an opinion regarding any functional loss in terms of additional degrees of limited motion of the thoracolumbar spine during flare-ups, specifically the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up. Additionally, the VA addendum once again declined to provide an opinion regarding the severity of the thoracolumbar spine disability prior to June 20, 2017, and provided no reason for this declination, therefore it did not comply with the previous remand instructions. Due to the deficiencies of the March 2020 and July 2020 VA medical opinions, as outlined above, the RO did not substantially comply with the Board's prior remand directives. This has not escaped the attention of the Veteran’s representative, who requested a remand of this matter to obtain an adequate medical opinion. Under these circumstances, , another remand is unfortunately necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998) The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to ascertain the severity of his service-connected thoracolumbar spine disability prior to June 20, 2017. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review. Using the information contained in the record, as well as the Veteran’s description of his symptoms, the examiner should delineate all symptoms associated with the Veteran’s service-connected thoracolumbar spine disability for the period September 18, 2012, through June 19, 2017. Specifically, the examiner must estimate any functional loss in terms of additional degrees of limited motion of the thoracolumbar spine during flare-ups and repetitive use over time as reported by the Veteran for the period September 18, 2012, to June 19, 2017, including during the June 2013 VA examination. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, Associate 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.