Citation Nr: 21012747 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 09-08 732 DATE: March 5, 2021 REMANDED From November 15, 2006 to September 2, 2010, entitlement to a rating greater than 10 percent for a low back disorder is remanded. From December 1, 2010 to July 10, 2011, entitlement to a rating greater than 10 percent for a low back disorder is remanded. From July 11, 2011, entitlement to a rating greater than 20 percent for a low back disorder is remanded. Entitlement to a total disability based upon individual unemployability (TDIU), prior to September 3, 2010, and subsequent to November 30, 2010, is remanded. REASONS FOR REMAND The Veteran had active service from November 1995 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In April 2018, the Board a) denied a rating greater than 10 percent for a low back disorder from November 15, 2006 to September 2, 2010; b) denied a rating greater than 10 percent for a low back disorder from December 1, 2010 to July 10, 2011; c) denied a rating greater than 20 percent for a low back disorder from July 11, 2011; d) granted service connection for a right knee disability; e) granted service connection for a right hip disability; f) granted service connection for a left knee disability; g) granted service connection for a left hip disability; and h) remanded the TDIU issue for further development. The Veteran appealed the Board’s denials of increased ratings to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the parties filed, and the Court granted, a Joint Motion for Partial Remand (JMPR). The JMPR, in relevant part, stated: The parties agree that the Board erred when it failed to ensure that VA fulfilled the duty to assist by providing an inadequate medical examination for Appellant’s low back disability. The parties also agree that the Board erred when it did not provide an adequate statement of reasons or bases for its denial of a rating in excess of 10% for a low back disability prior to July 11, 2011. The Board must ensure that VA has fulfilled the duty to assist, including providing a medical examination, when the record does not contain sufficient medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Further, “once the Secretary undertakes the effort to provide [a medical opinion], even if not statutorily obligated to do so, he must provide an adequate one.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate medical opinion must provide sufficient detail so that the Board’s decision is a fully informed one. Id. If an examination is for a musculoskeletal disability such as Appellant’s low back disability, then it must indicate if pain causes additional functional loss and the examination must describe that functional loss including where in the Veteran’s range of motion his pain sets in. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). The VA examiner must also elicit information about Appellant’s flare-ups, including information about additional functional loss, if any, that he suffers during a flare-up and then estimate functional loss including in terms of loss of range of motion during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). If the examiner cannot record or provide an estimate of the lost range of motion and functional loss due to flare-ups, then the examiner must explain why any estimate would be speculative. Id. In the August 2007 VA examination, the examiner did not solicit information about whether Appellant suffered from flare-ups, and he did not discuss any additional functional loss that could be caused by flare-ups in the examination report. R. at 1198 (1193-1200). The August 2016 VA examination report noted that Appellant had pain of forward flexion of his thoracolumbar spine but did not opine as to at what point pain began, or if it caused additional functional loss. R. at 389 (387-95). On remand, the Board must ensure that VA affords Appellant an adequate examination for his low back disability and should, after such examination, provide an adequate statement of reasons or bases for its assignment of a rating for Appellant’s low back disability for both time periods on appeal. Pursuant to the JMR, the Court vacated the Board’s April 2018 decision regarding the increased rating denials, and it remanded the matter to the Board for further proceedings consistent with the JMR. The Board, upon remand from the Court, considered the appeal in June 2019. It dismissed as moot the TDIU issue for the period from September 3, 2010 to November 30, 2010 because the AOJ had awarded the Veteran a 100 percent rating for convalescence due to low back surgery during that window. It also remanded the issues on the title page for additional development, to include a new VA examination with retrospective opinion. VA examined the Veteran in November 2019. In addition to the customary examination, the examiner opined: Review of the medical evidence shows the claimant served in active duty from November 1995 to February 2001. (1) The claimant has an established condition of L4-5 spondylolisthesis with foraminal stenosis & L3-4 Central Stenosis. Per the veteran FLARE UPS for this condition are “moderate to severe,” occurring 3-5 times a day/week, and lasting “hours.” (2) The veteran reports these flare-ups have occurred since 2006, however the degree of any functional loss during flare-ups cannot be determined with any degree of certainty. The reason why degree of functional loss, if any, cannot be determined is due to numerous inconsistencies noted on examination. In particular, the claimant was observed throughout most of his examination sitting in the exam room chair at 80-90 degrees lumbar flexion; however, when asked to perform ROM exercises the claimant reported he could only move to 40 degrees lumbar flexion. Therefore, although the claimant reports significant functional loss, the objective evidence does not support. For example, there may be a small difference in observe lumbar flexion between seated and standing position, this should really be no more than 10-15 degrees. Given this disparity, 35-50 degrees, it is more likely than not that the claimant is not being truthful, either consciously or subconsciously, for secondary gain regarding his back condition and the measurements obtained during examination and reported ROM during FLARE UPS cannot be used for objective rating purposes. (3) Based on the observed inconsistencies, there is no evidence to support the occurrence of FLARE UPS let alone “precipitating and alleviating factors and estimate (per the veteran) the extent to which they have affected functional impairment due to the spinal disorder since November 15, 2006.” A more accurate reflection of the Veteran’s Lumbar ROM is estimated as follows: Forward Flexion (0 to 90): 0 to 80-90 degrees Extension (0 to 30): 0 to 25-30 degrees Right Lateral Flexion (0 to 30): 0 to 25-30 degrees Left Lateral Flexion (0 to 30): 0 to 25-30 degrees Right Lateral Rotation (0 to 30): 0 to 25-30 degrees Left Lateral Rotation (0 to 30): 0 to 25-30 degrees Condition: Lumber Spine Disorder (1) Based on the medical inconsistencies it is not possible to estimate any additional functional impairment of the Lumber Spine since November 15, 2006, and therefore this cannot be expressed in degrees of range of motion. (2) Any symptoms and/or functional impairment due to the lumbar disorder alone can also not be determined due to these inconsistencies. (3) The effect of the claimant’s lumbar disorder likely has minimal functional impact on occupational tasks and activities of daily living. As exhibited by his extended employment with Rocky Mountain Cycle Plaza and child caring activities. For an unexplained reason, the TDIU issue, but not the increased rating issues, returned to the Board in October 2020. The Board, recognizing that the AOJ had not issued a Supplemental Statement of the Case (SSOC) on the TDIU issue prior to returning it to the Board, remanded the TDIU issue. Later that month, the AOJ issued an SSOC on all appellate issues, and the AOJ returned the appeal to the Board. The Board finds remand is again warranted. Specifically, the AOJ failed to attempt to obtain outstanding private treatment records that may bear on the appeal. The Veteran has cited chiropractic treatment for his low back disorder in VA treatment records (e.g., July 28, 2010 and February 19, 2020) and at his VA examinations in August 2016 and November 2019, but the AOJ did not attempt to identify and obtain these records. Remand is necessary for it to do so. Additionally, the Board notes that, VA, through the Veterans Health Administration (VHA), authorizes eligible Veterans to receive health care from a community provider rather than waiting for a VA appointment or traveling to a VA facility. This authorization includes the former Veterans Choice Program and current Veterans Community Care Program. Here, the Board observes that VHA has approved the Veteran for multiple Community Care Program referrals. These referrals are not explicitly related to the Veteran's low back appeal, but some, such as physical therapy and acupuncture, may bear upon it. Therefore, the Board instructs the Veteran to notify the AOJ, which, if any of his Community Care Program-approved providers have treated him for his low back disorder. As the TDIU issue is inextricably intertwined with the increased rating issue, the Board will remand this issue as well. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all chiropractors who have treated him for his low back disorder from November 15, 2006 to present. If the Veteran responds, attempt to obtain these records. 2. Ask the Veteran to identify which, if any of his Community Care Program-approved providers have treated him for his low back disorder. Ask him to provide the AOJ with the addresses and phone numbers of these facilities. If the Veteran responds, attempt to obtain all treatment records available from these facilities. 3. Independent of Directive #2, identify all records generated through the Veterans Choice Program or Veterans Community Care Program that VHA already possesses relevant to treatment of the Veteran’s low back disorder. Once identified, arrange for these documents to be made viewable in VBMS and/or added as separate files. In short, the Board wants to ensure that it can view all available records, not simply a notation that private records have been scanned into a VHA database to which the Board does not have access. (Continued on the next page)   Please print any relevant records from VistA imaging and then scan the printed records into the Veteran’s benefits file (VBMS). The Board reminds the AOJ that the Board does not have access to VistA Imaging, so any relevant records contained in VistA must be copied and uploaded/added to the Veteran’s VBMS file. 4. Undertake any development deemed necessary by completion of Directives #1-#3. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.