Citation Nr: 21015240 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-18 631 DATE: March 17, 2021 REMANDED Entitlement to a higher initial disability rating for degenerative disc disease (DDD) of the thoracolumbar spine in excess of 10 percent is remanded. Entitlement to a higher initial disability rating for status post right ulnar decompression and elbow strain in excess of 10 percent is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from November 2007 to November 2010. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at a May 2017 Board videoconference hearing in Roanoke, Virginia. The hearing transcript has been associated with the record. In an August 2019 decision, the Board dismissed the issues of a higher initial disability rating for status post right carpal tunnel release and entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), and remanded the remaining higher initial disability rating issues on appeal. Specifically, the rating issues were remanded to obtain an addendum opinion that was complaint with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Per a later May 2020 Remand, the Board found the subsequently obtained addendum opinion to be inadequate, and again remanded the instant matter for a new addendum opinion. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, for the reasons discussed below, an adequate opinion was not obtained following the May 2020 Remand, and remand is once again necessary. 1. Higher Initial Disability Rating for DDD of the Thoracolumbar Spine 2. Higher Initial Disability Rating for Status Post Right Ulnar Decompression and Elbow Strain In a November 2017 decision, the Board remanded the back and right elbow rating issues on appeal to obtain new VA orthopedic examinations. Review of the evidence of record, including VA treatment records and the Veteran’s testimony at the May 2017 Board videoconference hearing, indicated that the Veteran had complained of flare ups of pain in both the back and right elbow. On remand, the Veteran received VA back and elbow examinations in April 2019. Per the August 2019 decision, the Board noted that the VA examiner had reported no flare ups of pain and, therefore, did not address the question of additional functional loss during a flare-up. As such, pursuant to Sharp, the Board found remand for an addendum opinion addressing additional functional loss during a flare up to be necessary. The Board directed that, after reviewing all the evidence of record, including the Veteran’s May 2017 testimony, the VA examiner was to 1) estimate the functional loss in the back and right elbow, to include additional loss of range of motion, due to flare ups based upon all the evidence of record, including lay information, or 2) explain why he or she was unable to do so. Subsequently, VA obtained addendum back and elbow opinions in December 2019. Per the opinion reports, the VA examiner assessed that, after reviewing the lay and medical evidence of record, and based upon her medical expertise, there was no additional loss of function or range of motion during a flare up in either the back or right elbow. The Board found this opinion to be inadequate because it did not account for the actual flare-ups that were established by other evidence of record. In its May 2020 Remand, the Board explained that the Veteran’s May 2017 testimony reflected that, during a flare up of pain, the Veteran had at least some functional loss in both the back and right elbow. As such, it was not plausible to the Board that, during a flare-up, the Veteran experienced no additional functional loss or limitation of motion. The Board further explained that this was contrary to multiple rating principles in VA regulations, including 38 C.F.R. §§ 4.40, 4.45, 4.59. As the Board found the December 2019 addendum opinion to be inadequate, the Board again remanded the issues on appeal to obtain another addendum opinion from a different VA examiner. The Board directed that examination of the Veteran was unnecessary, unless the new VA examiner determined that an examination was necessary to render a reliable opinion. Further, the Board specifically directed that the VA examiner was not to find that the Veteran had no functional loss during a flare up in either the back or right elbow. Rather, the VA examiner was to quantify the functional loss, to include loss of range of motion, even if such functional loss was minimal in severity. Rather than obtaining the requested addendum opinions, the Agency of Original Jurisdiction (AOJ) scheduled the Veteran for new VA back and right elbow examinations in October 2020. Per the examination reports, the VA examiner found that the Veteran did not have flare-ups of pain in either the back or the right elbow, and did not render the requested Sharp opinions. The Board notes that the finding of no flare ups was made despite the Veteran’s apparent lay statements to the contrary. Specifically, in the VA back examination, the Veteran conveyed that, while forward flexion was always restricted, on some occasions the back would be “thrown out” upon forward flexion. Further, at the time of the VA elbow examination, the Veteran advanced that repetitive motion and isometric activity would trigger worsening symptoms. Such statements, when considered with the previous evidence of record, contradicts the VA examiner’s finding of no flare-ups. While the Board regrets the additional delay, as adequate Sharp opinions have not yet been received, remand for an addendum opinion is again necessary. No further VA examinations should be scheduled in the instant matter. The matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the back and right elbow/ulnar nerve. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s back and right elbow/ulnar nerve, not already of record, for the period from June 2020. Obtain a medical opinion as to the extent of functional impairment during flareups of the back and right elbow. After reviewing the relevant evidence of record concerning the Veteran’s flare ups of pain in the back and right elbow, to include VA treatment records and the Veteran’s May 2017 testimony, the examiner should either 1) estimate the functional loss in the back and right elbow, to include additional loss of range of motion, due to flare ups. If the examiner is unable to render such an opinion without resorting to mere speculation, the examiner should explain whether this inability is predicated on a lack of knowledge of the medical community at large or the examiner’s own insufficient knowledge. In rendering the above opinion, the examiner may not find that the Veteran has no functional loss during a flare up in either the back or right elbow. The VA examiner must quantify the functional loss, to include loss of range of motion, even if such functional loss is minimal in severity. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.