Citation Nr: 21012096 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 07-23 099 DATE: March 3, 2021 REMANDED The issue of an initial rating in excess of 10 percent for residuals of T12 compression fracture with lumbosacral strain and residuals of herniated nucleus pulposus at L5-S1 prior to April 26, 2012, and in excess of 40 percent from April 26, 2012, to October 8, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2001 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2006 rating decision, which granted service connection for residuals of a T12 compression fracture and assigned a 10 percent disability rating effective March 12, 2005. In September 2009, the Veteran and his spouse testified at a Board hearing; a transcript of the hearing is associated with the claims file. In February 2010, April 2015, and May 2016, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Meanwhile, a June 2014 rating decision continued the 10 percent rating for residuals of a T12 compression fracture with a lumbosacral strain and residuals of herniated nucleus pulposus at L5-S1; a July 2015 rating decision increased the disability rating for the back disability to 20 percent effective July 2, 2015, and subsequently, a May 2018 rating decision increased the rating to 40 percent effective October 9, 2107. In September 2018, the Board denied initial ratings in excess of 10 percent for the back disability prior to May 30, 2015; in excess of 20 percent from May 30, 2015, to October 8, 2017; and in excess of 40 percent from October 9, 2017. The Veteran appealed the Board’s decision denying a rating in excess of 10 percent for his back disability prior to May 30, 2015, and in excess of 20 percent from May 30, 2015, to October 8, 2017, to the Court of Appeals for Veterans Claims (Court). He did not appeal the denial of a rating in excess of 40 percent for his back disability effective from October 9, 2017, or the denial of higher ratings for radiculopathy of each lower extremity. In an April 2019 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the Board’s decision and remanding for additional proceedings. In October 2019, the Board remanded the appeal to the AOJ. A July 2020 rating decision assigned an earlier effective date of April 26, 2012, for the award of the increased, 40 percent rating for the Veteran’s back disability. In August 2020, the Board again remanded the appeal to the AOJ for additional development. The issue of an initial rating in excess of 10 percent for residuals of T12 compression fracture with lumbosacral strain and residuals of herniated nucleus pulposus at L5-S1 prior to April 26, 2012, and in excess of 40 percent from April 26, 2012, to October 8, 2017, is remanded. The Veteran contends that higher ratings are warranted for his back disability. The parties to the Joint Remand agreed that the Board erred when it (1) failed to adequately address the full extent of the Veteran’s symptoms of functional loss during flare-ups of his back disability; (2) failed to ensure that VA complied with its statutory duty to assist by relying on inadequate VA examination reports from September 2013 and May 2015; and (3) failed to fully address the Veteran’s explicit challenge of the adequacy of these two VA examinations. The outstanding medical question in his case is whether any additional functional loss of the spine during flare-ups or after repeated use over time can be expressed in degrees of additional loss of motion of the spine, including based on the Veteran’s lay statements and without the opportunity to observe him during a flare-up and/or after repeated use over time. Specifically, if it is medically feasible to provide an estimation of additional functional loss expressed in degrees of range of motion lost, then a VA examiner should provide retrospective estimates of such loss for the period from March 12, 2005, to October 8, 2017. Following the October 2019 and August 2020 Board Remands, the AOJ requested medical opinions regarding this issue; however, it appears that neither the December 2019 nor the September 2020 fee-basis examiners fully understood the medical opinion request. For example, the September 2020 reviewing fee-basis examiner appeared to believe that the Board was seeking “the global truth of [range of motion] and to reconcile this from 2005” or was seeking “reconciliation of all the . . . back exams.” In fact, to comply with the Court’s Order following the Joint Motion, the Board requires a retrospective estimate of additional functional loss of the spine during flare-ups or after repeated use over time expressed in additional degrees of range of motion lost, if feasible. The AOJ should obtain a supplemental medical opinion. The matter is REMANDED for the following action: 1. Provide the Veteran’s electronic claims file and a complete copy of this Remand to an examiner to obtain an addendum medical opinion regarding functional loss during flare-ups of back symptoms and after repeated use of the back over time. a) The designated examiner should explain whether it is medically feasible to describe additional functional impairment of the spine, expressed in terms of the degree of additional range of motion lost, during flare-ups and following repeated use over time, including by considering lay observations the Veteran has made about the function of his back during flare-ups or after repeated use over time. b) IF it is possible to describe additional functional impairment of the spine during flare-ups or following repetitive use over time (expressed in terms of degrees of range of motion lost), then the reviewing examiner should provide RETROSPECTIVE estimates of the degrees of range of motion lost during flare-ups of the spine and/or following repetitive use over time for the period from March 12, 2005, to October 8, 2017. c) If it is NOT possible to describe, retrospectively, additional functional impairment of the spine during flare-ups or following repetitive use over time (expressed in terms of degrees of range of motion lost) for the period from March 12, 2005, to October 8, 2017, without resorting to speculation, the reviewing examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined, and should explain whether it would be medically feasible for any clinician to provide such an opinion. 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. (Continued on next page) A medical rationale must be provided for all opinions expressed. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.