Citation Nr: 21015216 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-01 239 DATE: March 16, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for the Veteran's service-connected lumbar spine condition is remanded. Entitlement to a rating in excess of 10 percent disabling for the Veteran's service-connected right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent disabling for the Veteran's service-connected left lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1976 to December 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2018. The Board notes that during the development of this claim the RO in April 2020 granted the Veteran a 40 percent disability rating for his service connected lumbar spine condition effective August 13, 2013 (the date of the claim). This constitutes a partial grant of the Veteran’s claim, as such, the Board will discuss whether the Veteran is entitled to a disability rating in excess of 40 percent disabling. Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Lumbar Spine As part of the Board’s September 2018 Remand, the RO was required to obtain a VA examination for the Veteran’s lumbar disability which met the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). However, the Veteran has not yet been provided with this examination, and as the April 2020 rating decision was not a full grant of the claim on appeal, the Board finds that the Veteran must undergo an examination that meets the requirements of Correia and Sharp. Bilateral Lower Extremity Peripheral Neuropathy As part of the Board’s September 2018 Remand the RO was instructed to obtain an addendum to the August 2017 Addendum opinion to obtain sufficient rationale to support the examiner’s contention that the Veteran’s diabetes is the reason that his deep tendon reflexes (DTRs) were absent upon examination. While the Veteran was provided with October 2019 and August 2020 Peripheral Nerves examinations, neither examiner commented on the August 2017 addendum as required by the Board remand. Further, the Board notes that the DTRs reported in the two newer examinations are listed as normal. As such, the Board finds that an Addendum opinion is necessary which comments on the findings of the August 2017 examiner, and determines whether their findings were in error in light of the findings of the October 2019 and August 2020 examiners. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. 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. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability and comment on the effect of the lumbar disability on any occupational functioning and activities of daily living. (d.) 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 examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Then, obtain an addendum medical opinion from an examiner with sufficient expertise to comment on the findings of the August 2017, October 2019, and August 2020 VA Peripheral Nerve examinations. The examiner should review the file, including this remand. A new VA examination is not necessary unless the VA examiner providing the opinion determines one is needed. The examiner should be instructed to please provide the following opinion: Why and how would the Veteran’s diabetes cause the reflex exam findings referenced by the August 2017 examiner? In light of the normal DTR findings in the October 2019 and August 2020 examinations were the findings of the August 2017 examiner erroneous? The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.