Citation Nr: 21015515 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-41 004A DATE: March 17, 2021 REMANDED Entitlement to a rating greater than 40 percent from September 18, 2020, for lumbar spondylosis with arthritis (previously rated as mechanical lower back pain) is remanded. Entitlement to a rating greater than 20 percent from April 30, 2012 to September 18, 2020, for lumbar spondylosis with arthritis (previously rated as mechanical lower back pain) is remanded. Entitlement to a rating greater than 10 percent for right lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from April 30, 2012 to December 19, 2019, is remanded. Entitlement to a rating greater than 20 percent for right lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from December 20, 2019, is remanded. Entitlement to a rating greater than 10 percent for left lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from April 30, 2012 to December 19, 2019, is remanded. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from December 20, 2019 is remanded. For the period from April 30, 2012 to December 19, 2019, entitlement to a rating for right lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis is remanded. For the period from April 30, 2012 to December 19, 2019, entitlement to a rating for left lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis is remanded. Entitlement to a rating greater than 20 percent for right lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis from December 20, 2019, is remanded. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis from December 20, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February1979 to August 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. These matters were most recently remanded in July 2020 for additional development. During the remand a higher disability rating of 40 percent for lumbar spondylosis with arthritis was awarded, effective September 18, 2020. As discussed below, substantial compliance with the July 2020 remand order was not achieved, and another remand is necessary. Initial matter The Veteran’s electronic VA file includes a VA Form 9 reportedly related to an appeal seeking a clothing allowance that was allegedly denied in an August 2019 statement of the case. It appears that this appeal, which is under the jurisdiction of the Veterans Health Administration (VHA), may have an associated paper claims file containing procedural and evidentiary documents pertinent to this matter; however, such is unavailable for review by the Board at this time. Accordingly, the Board is unable to determine whether this filing is timely and/or whether the issue is currently under the Board’s jurisdiction. 1. Entitlement to a rating greater than 40 percent from September 18, 2020, for lumbar spondylosis with arthritis (previously rated as mechanical lower back pain). 2. Entitlement to a rating greater than 20 percent from April 30, 2012 to September 18, 2020, for lumbar spondylosis with arthritis (previously rated as mechanical lower back pain). 3. Entitlement to a rating greater than 10 percent for right lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from April 30, 2012 to December 19, 2019. 4. Entitlement to a rating greater than 20 percent for right lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from December 20, 2019. 5. Entitlement to a rating greater than 10 percent for left lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from April 30, 2012 to December 19, 2019. 6. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy (sciatic nerve) associated with lumbar spondylosis with arthritis from December 20, 2019. 7. For the period from April 30, 2012 to December 19, 2019, entitlement to a rating for right lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis. 8. For the period from April 30, 2012 to December 19, 2019, entitlement to a rating for left lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis. 9. Entitlement to a rating for right lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis from December 20, 2019. 10. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy (femoral nerve) associated with lumbar spondylosis with arthritis from December 20, 2019. The Board finds a remand is warranted to ensure compliance with the July 2020 remand order to obtain retrospective opinions on the severity of the Veteran’s lumbar spondylosis and associated radiculopathy of the bilateral lower extremities. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Due to deficiencies in prior exams which did not elicit statements about the severity of flare-ups and functional loss, new examinations were conducted. The new examinations, after eliciting statements about the severity of flare-ups and functional loss, resulted in higher ratings. These higher ratings were effective the dates of those new examinations and did not consider whether the severity of the disabilities shown at the newer examinations was present prior to the examinations. In the prior remand order, the Board stated that retrospective medical opinions were necessary to fill in the gap in the record where prior examinations did not elicit sufficient information to determine severity. Upon remand, the examiner did not provide a retrospective opinion. Instead the examiner stated that such an opinion would be “substandard” and that he could not opine as to severity he did not observe. The examiner also noted that if the Veteran’s own statements on reported symptomology were sufficient, VA should base a rating on that. Yet, as the Veteran’s representative noted in the appeal brief, the examiner made no attempt to elicit these statements. As noted in the prior remand, the record lacks sufficient evidence to provide a rating for the full period on review. The claim was remanded to obtain this information; however, the examiner failed to elicit the required information. When the record is ambiguous as to whether sufficient information is obtained, the Board has a duty to remand for further development. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Furthermore, the Veteran’s representative correctly noted in the appeal brief that the examiner does not appear to have considered the April 2017 imagining of the spine. The examiner notes a review of July 2015 and February 2016 imaging, but makes no note of the April 2017 imagining. It appears a full consideration of the Veteran’s past medical history did not take place. The duty to assist requires a thorough medical examination that considers prior medical treatment. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Further, if an examination report does not contain sufficient detail, the Board must return the report as inadequate. 38 C.F.R. § 4.2. Finally, the examiner’s reasoning for why he could not provide the requested opinion is inconsistent with the rest of the examination report, where the examiner found the Veteran’s statements a sufficient basis to estimate functional loss during flareups, which he neither observed nor found to be a substandard practice. This is not to find that the examiner is capable of rendering the requested opinion, but instead that the examiner did not provide an adequate explanation as to why he was unable to provide the requested opinions without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (requiring that examiners state whether the need to speculate was due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the knowledge or training of the examiner). It is possible that with a full review of the record and elicitation of a history of symptoms, an examiner still could not provide a retrospective opinion. However, given the gaps in the record, the incomplete examination, and inconsistent reasoning for not providing a retrospective opinion, the Board cannot make such a finding. Therefore, a remand is necessary to ensure a rating is based on all procurable evidence. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to clarify the severity of his lumbar spine disability. Access to the Veteran’s electronic claims file should be made available to the examiner for review in connection with the examination. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a.) The examination report should include the range of motion of the lumbar spine in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and non-weight-bearing, as required by38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. (b.) The examiner must attempt to elicit information regarding the FSD –frequency, severity, and duration of any flare-ups, and the degree of functional loss during flare-ups or on repeated use overtime. The examiner should assess such additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. 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). (c.) The examiner should elicit and report information from the Veteran, to include lay statements, as to the functional limitations experienced due to symptoms, including flareups, for the period from April 30, 2012. (d.) The examiner should, to the extent possible and based on the available evidence, provide a retrospective opinion for the period from April 30, 2012 addressing prior range of motion of the lumbar spine, painful motion (and at what point it started), additional loss of motion after repetitions, and function loss due to pain-considering active and passive motion as well as weight-bearing and non-weight-bearing considerations-throughout the claims period. If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination. (e.) The examiner should also state whether the Veteran’s service-connected lumbar spine degenerative joint disease results in incapacitating episodes manifested by physician-prescribed bed rest. If so, the examiner should report the dates and durations of these incapacitating episodes. (f.) The examination report should also identify all neurological manifestations of the service-connected lumbar spine degenerative joint disease, if any. (g.) The examiner should elicit and report information from the Veteran, to include lay statements, as to the functional limitations experienced due to neurological manifestations of the service-connected lumbar spine degenerative joint disease, including flareups, for the period from April 30, 2012. (h.) The examiner should provide a retrospective medical opinion for the period from April 30, 2012 through December 19, 2019, for the Veteran’s right and left lower extremity radiculopathies (sciatic nerve) and (femoral nerve) due to lumbar spine disability. (i.) The examiner is requested to differentiate which symptoms are attributable to the sciatic nerve versus the femoral nerve where possible. The examiner must provide a clear rationale for all opinions provided. If any opinion cannot be provided without resort to speculation, the examiner must state this and explain why. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.