Citation Nr: 21013239 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 08-23 495 DATE: March 9, 2021 REMANDED Entitlement to an initial rating for lumbar disc disease and chronic lumbar strain (lumbar spine disability), in excess of 10 percent disabling prior to February 25, 2010 is remanded. REASONS FOR REMAND The record reflects that the Veteran had active duty service and several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard from February 1981 to July 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision. The Veteran testified at an August 2014 hearing before a Veterans Law Judge who has since retired from the Board. The transcript is of record. In November 2019, the Veteran was notified that the Veterans Law Judge who conducted her hearing is no longer at the Board, and she was asked to respond within 30 days indicating whether she would like a new hearing. VA received no response. As such, there is no hearing request pending. This matter was initially before the Board in October 2014, when it was remanded for additional development. A May 2016 Board decision addressed several issues and, relevant to this appeal, denied an initial disability rating in excess of 10 percent for a lumbar spine disability prior to February 25, 2010. In June 2017, the Court of Appeals for Veterans Claims (Court) vacated the denial of the higher initial rating for a lumbar spine disability prior to February 25, 2010, and remanded the matter to the Board for compliance with a Joint Motion for Remand (JMR). In November 2017, the Board remanded the matter for additional development in compliance with the JMR approved by the Court. In January 2020, the Board found that none of the examinations provided since the November 2017 remand have substantially complied with the remand directives. On remand, the Board requested an opinion that estimated any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If an estimate could not be provided, the clinician was to state whether the need to speculate was caused by a deficiency in the state of general medical knowledge, or by a deficiency in the record or the clinician. In February 2020, a VA addendum opinion was received. The clinician noted that the Veteran is not being examined during a flare-up or after repetitive use over time, and that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up or with repetitive use over time. She noted that pain significantly limited functional ability with flare-ups and repeated use over time, but that she was unable to describe in terms of range of motion. She noted that after further review of the Veteran’s records and giving consideration to the subjective complaints and objective exam findings during the retrospective period, given her clinical knowledge and medical expertise, there remained no rational basis to make a notation regarding any additional losses of function or motion during a flare-up or with repetitive use. The Board finds that the February 2020 opinion did not substantially comply with the January 2020 remand directives. Stegall v. West,11 Vet. App. 268, 271 (1998). The opinion failed to provide an estimate of the degree of limitation of range of motion caused by the flares-ups and/or repetitive use, nor provide an explanation on whether the inability to describe in terms of range of motion was due to a deficiency in the state of general medical knowledge or by a deficiency in the record or the clinician. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the list of evidence noted in the opinion does not include December 2005 VA examination, which includes reports of flare-ups. The Board finds that an additional remand is necessary under Stegall. The matters are REMANDED for the following action: Obtain new retrospective medical opinion from an appropriate clinician regarding the limitation of motion during flare-ups of the Veteran’s lumbar spine disability from October 20, 2005 to February 25, 2010. Schedule a new examination only if deemed necessary by the clinician. a) The examiner should review all available reports of flare-ups, pain, weakness, and limitation of motion in the record during the period from October 20, 2005 to February 25, 2010, as well as prior medical opinions addressing this period. b) If a new examination is provided, the examiner should ask the Veteran to describe the flare-ups she experienced during this period, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experienced during a flare-up of symptoms and/or after repeated use over time. c) Based on the Veteran’s lay statements and/or the other evidence of record, the examiner must provide estimate the likely limitations caused by functional loss during a flare-up or after repeated use over time – expressed in degrees of limited motion. d) The examiner is advised that inability to observe the Veteran during flare-ups is a legally insufficient reason for failing to provide an estimate of the range of motion during flare-ups. If an estimate cannot be provided regarding the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the clinician must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the clinician (i.e. additional facts are required, or the clinician does not have the needed knowledge or training). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi 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.