Citation Nr: 21021024 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 10-04 301 DATE: April 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent for low back strain with osteoarthritis and intervertebral disc syndrome (IVDS) (low back disability) for the period prior to October 1, 2010 is remanded. REASONS FOR REMAND In July 2020 the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. See 07/16/2020 BVA Decision. As discussed further below, the Board finds less than substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating higher than 10 percent for low back disability for the period prior to October 1, 2010 is remanded. Pursuant to a remand by the Court of Appeals for Veterans Claims (Court), the Board remanded the case to the AOJ with instructions that a medical examiner review the December 2008 VA examination report and then provide an assessment of the Veteran’s additional loss of range of motion (ROM), if any, from functional loss due to flare-ups and repeat use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The AOJ arranged the review of the claims file as directed, but the examiner advised that he could not render the assessment other than via speculation; and, that the inability to do so was due to an absence of medical knowledge and experience in the medical community at large, not his personal lack of the requisite medical knowledge and experience. See 02/02/2021 C&P Exam, 2nd Entry, P. 4-5. The Board notes the examiner’s explanation but still finds it insufficient to rise to the level of substantial compliance with the remand directive. See Stegall, 11 Vet. App. 271. In his explanation, the examiner noted, “I have no basis to offer additional losses of function or motion with active motion, passive motion and pain with weight-bearing. I can only speculate the amount of loss of function or motion with active motion, passive motion and pain with weight-bearing.” (Emphasis Added). The examiner noted further that, My non-issuance of a non-speculative opinion is based on the lack of general knowledge among the medical community at large (rather than my own personal insufficient knowledge) and is not due to my own personal aversion to offering an opinion based on issues not directly observed.” See 02/02/2021 C&P Exam, 2nd Entry, P. 4. The Board finds that the emphasized phrase contradicts the examiner’s proffer that the medical community at large lacks the requisite knowledge to provide the requested assessment. To avoid repetitive remands, the Board encourages examiners to read “speculate” as “estimate.” The Court in Sharp was fully aware that, in most instances, examiners would not have the opportunity to observe a claimant during a flare-up or during repeat use over time. Hence, the Court directed that examiners consider the claimant’s reported history and symptoms, and the findings on examination, then give rating authorities the examiner’s best estimate. While it may be contrary to a clinician’s paradigm, it is not speculation to provide an estimate based on reported history and the objective findings on clinical examination. Reduced to a common colloquialism, in this instance, the Court is asking for an examiner’s “best shot,” given the information at hand. The matters are REMANDED for the following action: The AOJ shall return the claims file to the clinician who provided the February 2021 addendum, or another equally qualified clinician if the former persists in his refusal to do provide the Sharp estimate. Ask the clinician to review the December 2008 examination report (12/31/2008 VA Examination, P. 35-47) and then, in terms of degrees, based on the Veteran’s reported symptoms; his descriptions of his flare-ups and functional loss due to repeat use over time; and, the noted objective findings on examination, provide his/her best estimate of what the Veteran’s additional loss of ROM would be due to his flare-ups and repeat use over time. The Board fully understands the constraints the clinician is asked to work within but asks the clinician to provide his/her best estimate. The clinician may express their degree of confidence in their response on a 1-5 scale, with 5 being the most confident and 1 being the least. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.