Citation Nr: 21015629 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-38 744 DATE: March 18, 2021 REMANDED An initial disability rating in excess of 10 percent prior to July 10, 2017 for lumbar sprain with disc herniation is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2004 to March 2007 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is not the undersigned. A transcript of that hearing is of record. In August 2018, the Board notified her that the VLJ who conducted the April 2015 hearing was no longer employed at the Board and gave her the opportunity to request a new hearing. She did not request another hearing. 1. An initial disability rating in excess of 10 percent prior to July 10, 2017 for lumbar sprain with disc herniation is remanded. In a September 2017 decision, the Board awarded an initial disability rating of 10 percent for the Veteran’s lumbar spine disability for the portion of the appeal period prior to July 10, 2017. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court vacated the September 2017 Board decision to the extent that a rating higher than 10 percent was not awarded, and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). In doing so, the parties found that the Board erred in not ensuring that May 2011 and September 2014 VA examination reports addressed whether the Veteran’s flare-ups caused functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The parties, citing Chotta v. Peake, 22 Vet. App. 80, 85 (2008), directed the Board to obtain a retrospective medical opinion addressing this matter. In December 2018, the Board remanded the claim in order to obtain the retrospective opinion directed by the parties. The Board asked the examiner to opine as to whether any functional loss during flare-ups of the Veteran’s lumbar spine disability prior to July 10, 2017 could be determined in degrees of range of motion. In doing so, the examiner was directed to specifically consider the VA examination reports of May 2011 and September 2014. The examiner was advised that if the requested opinions could not be rendered without resorting to speculation, he/she was to state whether the need to speculate was caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner did not have the needed knowledge or training). A VA examination was provided in November 2019. The examiner did not provide any estimations of the Veteran’s functional loss prior to July 2017 in terms of the effect of such estimated in lost range of motion. The examiner did not provide any discussion of the May 2011 or September 2014 VA examination reports. Rather, the examiner only stated, “prior to 2017 expect some back pain with repeated lifting or prolonged sitting.” The examiner did not provide an explanation for why the requested opinion was not rendered. The November 2019 VA examination report does not comply with the underlying Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As such, further remand is required. Consistent with the prior remand, the opinion will be requested from a VA examiner with expertise in orthopedics. The matter is REMANDED for the following action: Provide the Veteran's electronic claims file to a VA examiner with expertise in orthopedics to obtain a retrospective opinion regarding the nature and severity of the Veteran's lumbar spine disability prior to July 10, 2017. Unless determined otherwise by the VA examiner, an actual examination of the Veteran is not required. The examiner must attempt to estimate any additional functional loss present during flare-ups during the portion of the appeal period dated prior to July 10, 2017, to particularly include on VA examination in May 2011 and September 2014, in terms of degrees of range of motion. In doing so, the examiner must consider all lay statements of record, and must provide the requested opinion based on any available information concerning the frequency, duration, characteristics, and severity of functional loss during flare-ups. (Continued on the next page)   If the examiner cannot provide an opinion as to the additional loss of motion during a flare-up without resorting to mere 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). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.