Citation Nr: 21013924 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-01 464 DATE: March 10, 2021 REMANDED Entitlement to a rating in excess of 20 percent for lumbar strain prior to June 5, 2018 is remanded. Entitlement to a rating in excess of 40 percent for lumbar strain from June 5, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1979 to April 1988. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2016. The Board remanded this case in December 2017 for additional development. In the October 2019 Board decision, the Board granted a 20 percent rating, but no more, for Veteran’s lumbar strain from September 25, 2007 to June 4, 2018, and granted a 40 percent rating, but no more, from June 5, 2018, pursuant to Diagnostic Code 5237. See October 2019 BVA Decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the July 2020 joint motion for partial remand (JMR), the Court vacated the Board’s denials of ratings in excess of 20 percent for lumbar strain prior to June 5, 2018 and in excess of 40 percent from June 5, 2018 and remand the matters for compliance with the terms of the JMR. The July 2020 JMR specifically stated that it did not disturb the grants of a 20 percent rating for the back disability from September 25, 2007 to June 4, 2018, and a 40 percent rating for the back disability from June 5, 2018. Finally, the Board notes that in a September 2013 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective April 27, 2013, the day following the Veteran’s last day at work. As such, the TDIU issue is not before the Board. 1. Entitlement to a rating in excess of 20 percent for lumbar strain prior to June 5, 2018 is remanded. 2. Entitlement to a rating in excess of 40 percent for lumbar strain from June 5, 2018 is remanded. The Veteran contends that he is entitled to an increased rating for his service-connected back disability. On review, the Board finds that a remand is warranted. In the July 2020 JMR the parties agreed that a separate evaluation for radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520, was warranted for Veteran’s lumbar strain. The parties also agreed that substantial compliance with the December 2017 BVA decision remand directives should be ensured; the subsequent June 2018 VA examination did not correct the deficiencies found by the Board in its decision. Specifically, a November 2008 VA examination failed to describe the functional impairment of flare-ups in terms of range of motions loss or explain why it is not possible; the June 2018 VA examination did not address the Veteran’s flare-ups in November 2008. The Court stated that, on remand, a retrospective opinion is warranted that addresses the Veteran’s flare-ups as noted in the November 2008 VA examination report in terms of range of motion. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (finding that the duty to assist “may include obtaining a retrospective medical opinion.”). “If for some reason the examiner is unable to conduct the required testing . . . he or she should clearly explain why that is so.” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). As such, another VA examination is necessary to adjudicate these issues. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his back disability, and the nature, extent and severity of his back symptoms and the impact of these conditions. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his lumbar strain disability. All necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time throughout the appeal, if possible. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use during the appeal without resorting to speculation, the examiner should 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 examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should also discuss the nature and severity of any right extremity or left extremity radiculopathy, or neuropathy found to be present. The examiner is asked to look at and consider the medical evidence of record, including a post-operative diagnosis of lumbar radiculopathy in June 2013, January 2016 and December 2017 private medical records from Pain Management Clinic, impression of radiculopathy secondary to lumbar disc replacement in May 2013, June 2013, November 2013, February 2014, May 2015, and January 2016. It is imperative that the VA examiner also provide a retrospective medical opinion to address the Veteran’s reported flare-ups causing “mild functional impairment” in the November 2008 VA examination. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide a retrospective opinion that estimates any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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 examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.