Citation Nr: 21014366 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 11-28 975 DATE: March 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine, from February 8, 2010, to July 12, 2011, is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine, as of July 13, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1996 to August 1999. This matter comes to the Board of Veterans’ Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection and assigned an initial 10 percent rating for lumbosacral strain from February 8, 2010, the date of receipt of the Veteran’s claim for service connection. An interim October 2011 rating decision assigned an increased staged rating of 20 percent from July 13, 2011, the date of VA examination showing increased disability, and an interim March 2013 rating decision granted separate 10 percent ratings for radiculopathy of each lower extremity as secondary to service-connected degenerative disc disease of the lumbar spine from July 27, 2012, the date of receipt of a statement from the Veteran describing his symptoms. After remanding the claim in February 2017 and November 2017, an August 2019 Board decision denied increased staged ratings for degenerative disc disease of the lumbar spine, rated 10 percent prior to July 13, 2011 and 20 percent from that date (this decision also denied a rating in excess of 10 percent for right knee degenerative joint disease, from February 8, 2010, to July 26, 2012; granted a separate 10 percent rating for right knee degenerative joint disease as of July 27, 2012; and denied a rating in excess of 20 percent for right knee meniscal tear as of July 27, 2012). The Veteran appealed the portion of the August 2019 Board decision which denied increased staged ratings for degenerative disc disease of the lumbar spine to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court vacated the August 2019 Board decision and remanded the matter of increased staged ratings for degenerative disc disease of the lumbar spine for readjudication consistent with the instructions in a Joint Motion for Partial Remand (JMPR). The Order dismissed the appeal as to the remaining issues addressed in the August 2019 Board decision. During the appeal period since the Veteran’s February 2010 claim for service connection for a low back disorder, the Veteran underwent VA back examinations in May 2010, July 2011, March 2013, April 2017 and February 2018. In the JMPR, the parties argue that the May 2010, July 2011, March 2013 and April 2017 examination reports are insufficient for rating purposes and remand for “a new, retrospective VA examination” to assess the Veteran’s back disability is necessary. Specifically, the parties note (1) the May 2010 examiner noted the Veteran’s range of motion was “limited by pain” but did not state where in the range of motion pain began, mentioned flare-ups but did not provide an opinion on potential functional loss due to flare-ups and noted the Veteran’s report of stiffness but did not mention stiffness when conducting the examination or providing the opinion; (2) the July 2011 examiner found no history of flare-ups on review of the record, although flare-ups were noted in the May 2010 examination report; noted stiffness, weakness and spasms without indicating how those symptoms factored into the assessment of functional loss and did not note where the Veteran’s pain began in his range of motion; (3) the March 2013 examiner indicate the Veteran had flare-ups but did not state how flare-ups would impact the Veteran’s range of motion and (4) the November 2017 Board decision (remand) had found the April 2017 examination non-compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017) but recounted the findings of the April 2017 examination report in the August 2019 Board decision without clarifying whether any weight was being placed on the examination findings. Accordingly, remand for “a new, retrospective VA examination” to assess the Veteran’s back disability in compliance with the JMPR (and February 2017 Board remand) is necessary. It is also noted that VA treatment records show the Veteran underwent evaluation at High Mountain Brain and Spinal Surgery Center in Glenwood Spring in August 2017 and he was treated at The Spine Center in Valley View in April 2019, these private treatment records are not associated with the claims file and are not available for review. In addition, in a May 2019 VA Form 20-0995, Decision Review Request: Supplemental Claim, the Veteran reported he was scheduled to undergo back surgery in June 2019. As such, on remand, updated VA and private records should be obtained. The matters are REMANDED for the following action: 1. After obtaining any necessary authorization, the AOJ should undertake appropriate development to obtain any outstanding VA and private treatment records pertinent to the Veteran’s claim, to specifically include: (a.) Outstanding and updated VA treatment records; and (b.) records from High Mountain Brain and Spinal Surgery Center in Glenwood Spring, including in August 2017; and (c.) records from The Spine Center in Valley View in April 2019; and (d.) records related to any spine surgery including surgery scheduled in June 2019. The Veteran is advised he can provide the private records to VA. 2. After the development sought in paragraph 1 is completed, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and a retrospective medical opinion to determine the nature and severity of his service-connected thoracolumbar spine disability since 2010. All indicated tests should be performed. After interview and examination of the Veteran and review of his claims file, the examiner is requested to delineate all symptomatology associated with, and the current severity of, his thoracolumbar spine disability. In particular, the examiner should respond to the following: a. The examiner should test the range of motion of the Veteran’s thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible. 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. b. The examiner should consider the Veteran’s reports of flare-ups and portray or estimate any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner must indicate why. c. The examiner is asked to review the evidence of record since receipt of the Veteran’s February 2010 claim for service connection, to specifically include prior VA examination reports (from May 2010 to the present) and treatment records, and provide the following retrospective opinions: i. Identify the range of motion of the Veteran’s thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing for the period (a) from February 2010 to July 2011 and (b) from July 2011 to the present. ii. Indicate (estimate) at what point was the range of motion reduced due to pain, stiffness, and/or flare-ups for the period (a) from February 2010 to July 2011 and (b) from July 2011 to the present. In responding to the above, the examiner should elicit the Veteran’s subjective complaints (including flare-ups) and consider and discuss as necessary the following: • March 2010 VA Form 21-4138, Statement in Support of Claim, in which the Veteran reports his back disorder has affected his lifestyle because he is “always in pain.” • May 2010 VA examination report which notes the Veteran reported “constant low back pain which is moderate,” forward flexion was “limited by pain,” flare-ups with increased pain which lasted 1-2 days, radiating pain with occasional muscle spasms and low back stiffness. This examination also notes that, functionally, the Veteran “has an active lifestyle and his work has not been limited although he spends time sitting as a banker.” • November 2010 VA treatment record which notes “low back pain radiates down the posterior aspect of both lower extremities to the knees and sometimes the feet and is accompanied by numbness and tingling and paresthesias in both feet if he is sitting or driving.” • July 2011 examination report which notes stiffness, weakness and spasms as well as numbness, paresthesias and radiation of pain to both legs. This examination report also includes a diagnosis of mild degenerative disc disease of the “lumbar spine with objective evidence of bilateral L5 sensory radiculopathy of positive SLR testing.” • March 2013 examination report noting flare-ups causing him to “[a]voids heavy lifting, cannot pick up his children very careful when he plays basketball or soccer with his kids very gently.” • April 2017 examination report which notes flare-ups described as “occasional burning, like on fire with locking up.” • August 2017 VA treatment records which note the Veteran’s long history of thoracolumbar pain which radiates to both legs and his receipt of epidural steroid injections which “did not provide him with any long-term benefit.” • February 2018 examination report and supplemental opinion which include the assessment that the “Veteran’s degenerative disc disease diagnosis is currently asymptomatic” and “exam findings show nothing more than subjective pain” without providing further comment as to the Veteran’s functional impairment during the appeal period based on a review of the record, including receipt of epidural steroid injections 6 months earlier, in August 2017. The examiner should reconcile the subjective complaints with the objective findings, commenting on the resulting functional impairment. The examiner is advised that governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the moment of examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, 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). A full rationale is to be provided for all stated medical opinions. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.