Citation Nr: 21013237 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-09 959 DATE: March 9, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to February 19, 2013 for lumbar spine disability is remanded. Entitlement to a rating in excess of 20 percent from November 15, 2013 to February 19, 2015 for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1983 to December 1985. These matters come before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office that in part granted an increased rating of 20 percent for degenerative disc disease and osteoporosis of the lumbar spine (lumbar spine disability), effective November 18, 2011. In June 2018, the Board granted a rating of 40 percent for the lumbar spine disability specifically for the period from February 19, 2013 to November 14, 2013 but denied a rating in excess of 20 percent for earlier and later periods of the appeal. The Board also granted service connection and ratings for right leg sciatica as a neurological complication of the lumbar spine disability, assigning a 20 percent rating from November 18, 2011 to February 18, 2015 and a 40 percent rating thereafter. The Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) in February 2019 vacating in part the Board of Veterans’ Appeals’ (Board) June 2018 decision for the two periods of 20 percent for the lumbar spine disability and for the period of 20 percent for the sciatica. For the period prior to February 19, 2013, the JMPR indicated that because the Board did not consider whether the June 2012 VA examiner’s findings regarding flare-ups properly complied with the law, remand was warranted. For the period from November 15, 2013 to February 19, 2015, the JMPR indicated remand was warranted for the Board to reconcile inconsistent findings and for the Board to consider the adequacy of the November 2013 VA examiner’s assessment of the Veteran’s reported flare-ups considering Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). In September 2019, the Board reconsidered but continued to deny a rating higher than 20 percent for radiculopathy of the right lower extremity with involvement of the sciatic nerve prior to February 19, 2015. This decision has not been appealed. A September 2019 Board remand directed that a retrospective VA spine examination be conducted to ascertain the severity of the Veteran’s service-connected low back condition for the period from November 18, 2011 to February 19, 2013 and from November 15, 2013 to February 19, 2015. It was noted all symptomatology associated with the low back condition during these time periods should be identified. In order to comply with Sharp for both time periods at issue, the examiner was asked to describe whether pain, weakness, fatigue and/or incoordination significantly limited functional ability during flares or repetitive use. It was noted the examiner should specifically interview the Veteran about the nature of the flare-ups that she reported on the June 2012 and November 2013 VA examinations, and then assess this impairment during flare-ups at that time and provide an estimate of that loss in terms of degrees reduction in range of motion. A lumbar spine exam was conducted in December 2019. A May 2020 supplemental statement of the case (SSOC) was issued and an August 2020 Board remand directed that the agency of original jurisdiction (AOJ) issue another supplemental statement of the case that considers additional evidence of record including a June 2020 lumbar spine examination report received since the May 2020 SSOC. Such an SSOC was issued in October 2020. 1. Entitlement to a rating in excess of 20 percent prior to February 9, 2013 for a lumbar spine disability As noted above, the September 2019 Board remand directed that a retrospective VA examination be conducted. While a new examination was obtained in December 2019, it appears to have provided an assessment of the Veteran at that time and does not address the time periods at issue. Neither does the opinion in June 2020 provide an estimate of the Veteran’s functional loss during the relevant time frames in terms of degrees reduction in range of motion as required. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a rating in excess of 20 percent from November 15, 2013 to February 19, 2015 for a lumbar spine disability For the reasons noted above, another remand is required. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from a qualified clinician. The clinician must review the Veteran’s claims file and interview the Veteran to ascertain the severity of the Veteran’s service-connected low back condition for the periods from November 18, 2011 to February 19, 2013 and from November 15, 2013 to February 19, 2015. Questioning of the Veteran about her impairment during these periods may be conducted electronically; whether an in person examination is needed is left to the clinician’s discretion. All symptomatology associated with the low back condition during these time periods should be identified. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), for both time periods at issue, the clinician is asked to describe whether pain on motion, weakness, fatigability, and/or incoordination, limited functional ability during flare ups or repetitive use. If so, the clinician must estimate what the range of motion was during flare ups and/or repetitive use. The clinician should specifically interview the Veteran about the nature of flare-ups that she reported on the June 2012 and November 2013 VA examinations and then assess this impairment, including during flare ups and provide retroactive opinions as to any additional functional loss during flare ups at those times and provide an estimate of any such loss in terms of degrees reduction in range of motion. 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, and duration of the flare ups and her 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 the 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. (continued next page) The examiner should also comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli, 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.