Citation Nr: 21014190 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-18 187 DATE: March 11, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain, degenerative changes, discogenic disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2009 to July 2010 This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 Regional Office (RO) rating decision. In that rating decision, the RO denied a disability rating in excess of 20 percent for service-connected lumbar strain, degenerative changes, discogenic disease. The Veteran’s notice of disagreement (NOD) was received in August 2016. The RO issued a statement of the case (SOC) in October 2016. The Veteran’s VA Form 9, substantive appeal to the Board, was received in November 2016. In November 2018, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In an August 2019 Order, the Court vacated the part of the Board’s November 2018 decision that denied a disability rating in excess of 20 percent for service-connected lumbar strain, degenerative changes, discogenic disease service-connected lumbar strain, degenerative changes, discogenic disease and remanded the matter pursuant to an August 2019 Joint Motion for Partial Remand (JMPR). In March 2020, the Board remanded the case to the RO for further development and adjudicative action. Another remand is necessary as there has not been substantial compliance with the March 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that substantial compliance, rather than strict compliance, with the Board’s remand directives is required). In this regard, the August 2019 JMPR stated that the March 2016 and July 2017 VA examinations were inadequate. Specifically, the VA examiners recorded that during flare-ups, the Veteran was unable to bend, perform duties at home, sit or stand for long periods of time, and drive. He was also unable to perform physical activity because it worsened his pain. However, the VA examiners did not attempt to estimate, in terms of range of motion, the Veteran’s additional functional loss during flare-ups and after repeated use over time. The JMPR specifically noted that the March 2016 and July 2017 VA examinations did not include assessments as to whether additional functional loss during flare-ups and after repeated use over time could be determined in degrees of range of motion loss as contemplated by this Court’s holdings in Mitchell and Sharp. See Mitchell, v. Shinseki, 25 Vet. App. 32, 44 (2011) (concluding that an examination was in adequate because it “did not discuss whether any functional loss was attributable to pain during flare-ups, despite noting the appellant’s assertions [thereof]”); Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). The examiners also did not provide adequate explanations as to why the examiners could not provide that information. See Sharp, 29 Vet. App. at 33 (requiring VA examiner to “Estimate, ‘per [the] veteran,’ to what extent, if any, [flare-ups or repeated use over time] affect functional impairment”). Thereafter, the Board remanded the claim in March 2020 to obtain a new VA examination. The March 2020 remand specifically requested that the VA examiner estimate to what extent, if any, flare-ups or repeated use over time affect functional impairment. The remand also noted that if it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment, without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The Veteran underwent a VA examination for the thoracolumbar spine in October 2020. The examiner elicited from the Veteran information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner noted that she was unable to describe functional loss in terms of range of motion during flare-ups or repeated use over time and the examiner did not provide any explanation for why she was unable to describe the functional loss in terms of range of range of motion due to flare-ups or repeated use over time. Thus, a remand is necessary to obtain an addendum opinion and/or, if deemed necessary, another VA examination. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the October 2020 VA examiner, if possible. Based on the Veteran’s lay statements and the other evidence of record, the October 2020 examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. For example, is it reasonable to estimate, based on the Veteran’s reports, that the Veteran’s forward flexion (limited to 40 degrees on examination) would be further limited by 10 degrees or more during a flare-up? 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). 2. If the October 2020 VA examiner is not available or if another examination is deemed necessary by the October 2020 VA examiner, then schedule the Veteran for a VA examination to determine the current nature and severity of his thoracolumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all thoracolumbar spine pathology found to be present. The thoracolumbar spine should be tested in both active and passive motion, in weight-bearing and non weight-bearing. 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. 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). Finally, the examiner should identify and comment on the existence, frequency, or extent of, as appropriate, all neurological manifestations of the Veteran’s back disability. 3. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.