Citation Nr: 21021768
Decision Date: 04/13/21	Archive Date: 04/13/21

DOCKET NO. 14-31 363A
DATE: April 13, 2021

REMANDED

Entitlement to a rating in excess of 10 percent, prior to October 22, 2012, for a low back disability, is remanded.

REASONS FOR REMAND

The Veteran had active service from July 1992 to April 1993, from April 1996 to June 2001 and from December 2001 to November 2007.

In September 2019, the Board issued a decision which, in part, denied the Veteran's claim for a rating in excess of 10 percent, prior to October 22, 2012, for a low back disability.  He appealed that part of the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  VA and the Veteran's attorney then filed a Joint Motion for Partial Remand (JMPR), which was granted by the Court in an August 2020 Order.  As a result, the September 2019 decision has been vacated in part, and remanded to the Board for further action consistent with the JMPR.

1. Entitlement to a rating in excess of 10 percent, prior to October 22, 2012, for a low back disability, is remanded.

In the JMPR, the parties agreed that in the September 2019 decision, the Board erred because the October 2011 VA examination it had relied upon to deny a rating in excess of 10 percent prior to October 2012 was an inadequate medical opinion. Specifically, the parties agreed that the October 2011 VA examination was inadequate for adjudication purposes, because despite noting that the Veteran had flare-ups that impacted his ability to lift, touch his toes, drive, and stand straight, the examiner did not estimate the functional impact of these flares in terms of degree of range of motion loss.  The parties agreed that the Board must remand the matter and obtain an adequate opinion and instruct an examiner to give an estimate regarding range of motion loss during flare-ups based on the descriptions contained in the 2011 VA examination report.  In light of the JMPR and Court Order, a remand is warranted to address the noted discrepancies.  

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The matter is REMANDED for the following action:

Forward the Veteran’s claims file to an appropriate VA examiner for review and a supplemental medical opinion that addresses the inadequacies in the October 2011 VA examination.  The examiner should be advised that the October 2011 VA examination was found to be inadequate for adjudication purposes, because despite noting that the Veteran had flare-ups that impacted his ability to lift, touch his toes, drive, and stand straight, the examiner did not estimate the functional impact of these flares in terms of degree of range of motion loss.  The examiner should review the claims file and provide an estimate regarding range of motion loss during flare-ups based on the descriptions contained in the 2011 VA examination report.  Rationale must be provided for any opinion reached.  If the examiner is unable to provide any opinions without resort to speculation, this should be clearly stated, and provide an explanation why this is so.

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Casula

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.