Citation Nr: 21022001 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-33 388 DATE: April 14, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for a back disability, prior to January 7, 2020, is remanded. Entitlement to an increased rating in excess of 40 percent for a back disability, from January 7, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1985 to January 1989. By way of procedural history, the Board notes that these claims come from the Veteran’s initial claim for an increased rating for his back disability which was initially denied by the Board in a June 2017 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2017 Order, pursuant to a Joint Motion for Remand (JMR) filed the same month, the Court vacated the Board’s June 2017 decision and remanded the claim for action consistent with the terms of the parties’ JMR. Subsequently, the claim was remanded by the Board in October 2019, with directives to the RO for further development consistent with those instructions in the Court’s JMR. Upon further development, the RO issued May 2020 rating decision granting the Veteran an increased rating to 40 percent for his back disability, two separate rating for his diagnosed radiculopathy of his bilateral lower extremities, and a separate rating for his surgical scars on his back; all these grants became effective on January 7, 2020, the date of the VA examination in which revealed these additional conditions relating to his back disability. In July 2020, the Veteran, through his representative, submitted a timely Notice of Disagreement (VA Form 10182) to both the effective dates and ratings assigned by the RO in the May 2020 rating decision, and selected the hearing docket, so to provide testimony before a Veteran’s Law Judge (VLJ). In December 2020, the Veteran was afforded a hearing before an VLJ, and time was provided after such hearing for the Veteran to provide additional evidence and arguments regarding his claims. As such, the claims are appropriately before the Board for adjudication. As an initial matter, the Board notes that the Veteran has presented testimony with regards to the back disability by three separate VLJ’s. Generally, VLJs who conduct hearings must participate in making the final determination of the claims involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707 (2019). By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when an appellant has had a hearing before two separate VLJs during the appeal and the hearings covered one or more common issues, as is currently the case, a third VLJ is assigned to the panel. The Court has interpreted 38 C.F.R. § 20.707 as requiring that an appellant be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Here, as the Veteran has received his third hearing regarding this matter, and as the panel of VLJ’s undersigned herein have all heard testimony from the Veteran regarding this the Veteran’s claim for increased rating for his spine disability, the Board finds that VA has complied with Arneson and will proceed with the decision. See Id.; 38C.F.R. §20.700(a). The Board notes that as the Veteran’s separate claims related to radiculopathy and scars were not heard at the previous hearings, as such, those claims will be adjudicated and discussed in a separate Board Decision. 1. Entitlement to an increased rating in excess of 20 percent for a back disability, prior to January 7, 2020, is remanded. 2. Entitlement to an increased rating in excess of 40 percent for a back disability, from January 7, 2020, is remanded. The issue of entitlement to an increased rating for a back disability is remanded to correct a duty to assist error. The Agency of Original Jurisdiction (AOJ) obtained a January 2020 examination report prior to returning the case to the Board for further appellate review. However, this examination report did not adequately address the question in controversy regarding a retrospective analysis of contradicting medical evidence during the earlier period of this claim. As such, the Board finds that such examination is inadequate, and remand is required for the VA to fulfill its duty to the Veteran. By way of procedural history, the Veteran’s claim for increased rating was previously denied by the Board, and vacated by the Court in 2017, by way of a JMR. As noted in the Court’s December 2017 JMR, in the Board initial denial, the Board erred by failing to provide an adequate statement of reasons or bases with regard to a September 2016 VA medical opinion. In that opinion, the examiner was asked to reconcile two disparate examinations— an April 2016 VA examination and a July 2016 private examination— which concluded vastly different objective disability pictures regarding the Veteran’s back disability. The September 2016 VA examiner, however, found that she could not reconcile such discrepancies without resorting to mere speculation. The Court found such rationale and finding to be inadequate, along with the Board’s basis for an initial denial of the claim. As a result of the JMR, the Board remanded the claim in October 2019, to obtain an addendum opinion that adequately spoke to this retroactive discrepancy in the Veteran’s claims file, and in January 2020, the RO acquired an opinion speaking to this issue. However, the Board finds that, a close review of this opinion regarding this retrospective discrepancy in the Veteran’s back evaluation, reveals that this opinion again, is inadequate, and another remand is required to fulfill the VA’s duty to the Veteran. Specifically, the Board notes that that a close review of the opinion reveals that the VA examiner’s opinion and rationale offers no real explanation or reasoning with regards to why there was such a discrepancy between the objective measures of the Veteran’s back disability in the VA and private examination reports. The VA examiner’s report essentially acknowledges that there is a discrepancy several times, speaks to some type of malingering by the Veteran, for which she provides no explanation or basis, and then speaks to medical/surgical procedures that post-date these examinations. The Board finds that a close reading of this opinion provides no real basis or any type of reconciliation of the noted disparate examinations in question. As such, the Board must find that such opinion and examination to be inadequate, and an addendum opinion is required. The matters are REMANDED for the following action: 1. Provide the Veteran’s claim to an appropriate VA examiner with the proper expertise and training regarding musculoskeletal disabilities, to acquire an addendum opinion regarding the nature and severity of the Veteran’s back disability prior to January 2020. To this end, the examiner must examine the claims file and the Veteran’s medical history, and explicitly note as such in the report. The examiner is asked to provide the following opinion: provide a retrospective opinion regarding the nature and severity of the Veteran’s back disability from the inception of the claim to January 2020. In this regard, the examiner must explicitly and purposefully reconcile the disparate objective findings of the April 2016 VA examination and the July 2016 private examination. If the examiner cannot reconcile these examination reports, the he/she must explicitly state so, and explain the inability to provide an opinion or whether the inability is predicated on a lack of knowledge on the medical community at large, or merely insufficient knowledge of this specific examiner. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by clear rationale consistent with the evidence of record. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.