Citation Nr: 21015191 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 09-31 122 DATE: March 16, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for a lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1999 to August 2002 and from October 2006 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded for further development in November 2013, April 2017, and July 2018. The claim was last remanded in August 2020. While the Board sincerely regrets additional delay, further development is necessary. Entitlement to an initial rating in excess of 20 percent for a lumbosacral strain is remanded. In August 2020, the Board remanded the issue for a medical opinion regarding additional functional loss due to flare-ups as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board noted that the Veteran had reported flare-ups during examinations in September 2009 and January 2014. On remand, a medical expert was asked to review the claims file and those examination reports and estimate the functional impairment caused by his flare-ups. The claims file includes a December 2020 medical opinion regarding the Veteran’s functional impairments due to flare-ups. However, that opinion is inadequate, and a new opinion is necessary. More specifically, in his findings, the examiner stated that he could not provide an opinion describing the Veteran’s functional impairment in 2009 or 2014 stating “it is obvious from the facts presented that at this juncture, I as the ACE examiner in 2020 cannot provide an opinion describing functional impairment of vets[sic] back that occurred in 2009 and 2014.” However, he does not provide sufficient rationale for so finding. Instead, the December 2020 report indicates that the examiner did not thoroughly describe, or possibly review, the evidence of record. His assessment of the Veteran’s complaints during his September 2009 examination are brief and incomplete, and the examiner is not shown to otherwise consider the Veteran’s reported history. Further, in support of his conclusion that he could not determine the previous limitations due to flare-ups, the December 2020 examiner relied upon the January 2014 VA examiner’s opinion that the Veteran’s back symptoms were due to a post-service injury and not service. Service connection is not at issue in this case and the medical examiner should not have relied upon a 2014 finding that the Veteran’s symptoms were due to a 2008 work injury. In sum, as the December 2020 report is inadequate, a new opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a medical opinion addressing the severity of the Veteran’s back disability during a flare-up. No additional examination is necessary, unless the examiner determines otherwise. The examiner is asked to address the following: Considering the Veteran’s reported history and the September 2009 and January 2014 examinations described above, but disregarding the January 2014 examiner’s finding that lumbosacral strain was not due to service, please provide an opinion describing functional impairment of the Veteran’s back during flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, and report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. If an examination is needed for this determination, one should be scheduled. A complete rationale shall be given for all opinions and conclusions expressed. 2. Then readjudicate the claim remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.