Citation Nr: 21022451 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-21 048 DATE: April 15, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for service-connected low back strain with degenerative disc disease (DDD) prior to April 18, 2017, is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Gulf War Era, from August 1993 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). To summarize the pertinent procedural history, the Board previously denied the Veteran’s claim by decision dated April 2018 and, thereafter, he appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Court entered its Order vacating the Board’s decision and remanding the issue for action consistent with an agreed upon Joint Motion for Partial Remand (JMPR). Further, the Order dismissed the remaining issues of entitlement to a disability rating in excess of 40 percent from April 18, 2017, to August 23, 2017, and in excess of 20 percent thereafter. As such, the issue has been characterized accordingly. The Board remanded the matter in August 2019 for additional development consistent with the terms of the JMPR. Following the additional development, which resulted in a May 2020 Rating Decision granting a 40 percent rating effective December 6, 2019, the matter again returned to the Board. In September 2020, the Board determined there had not been substantial compliance with the prior remand directives consistent with the JMPR and, again, remanded the issue for the required additional development. The additional development has been conducted and the matter returns to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds there has not been substantial compliance with the prior remand directives such that remand is again required. See Stegall v. West, 11 Vet. App. 268 (1998). REASONS FOR REMAND Entitlement to an initial disability rating in excess of 20 percent for service-connected low back strain with DDD prior to April 18, 2017, is remanded. Pursuant to the Board’s most recent remand dated September 2020, the Veteran underwent a VA medical examination in November 2020 and a retrospective medical opinion was to be obtained. For the following reasons, the Board finds the VA examination reports are inadequate for rating purposes for the period prior to April 18, 2017. See Barr v. Nicholson, 21 Vet. App. 303 (2007). First, although the VA examiner acknowledged that pain, weakened movement, excess fatigability, or incoordination significantly limits, in varying degrees, the Veteran’s current functional ability during flare-ups, he reported that, “[i]t would be speculation at best to give a retrospective estimation of functional loss during flare ups between 2011 and 2017 because the decrease in initial ROM is negligible between the 2011 and 2017 [compensation and pension] exams.” The Board finds the VA examiner’s abbreviated rationale for concluding that such a retrospective opinion could not be rendered is vague and confusing and, therefore, inadequate for rating purposes for the period prior to April 18, 2017. Moreover, the VA examiner did not discuss the specific facts that could not be determined without speculation, also contrary to the Board’s prior remand. Based upon the foregoing, the Board finds that remand is required to afford the Veteran a VA examination and obtain a retrospective medical opinion adequate for rating purposes for the period prior to April 18, 2017. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an in-person VA examination with a physician who has not previously rendered an opinion in this matter and possessing the necessary expertise to fully assess and provide a retrospective opinion regarding the nature and severity of the Veteran’s service-connected low back strain with DDD for the period from March 7, 2011, to April 17, 2017. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology and functional impairments. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must provide a full and detailed description of the disability and report all signs, symptoms, and treatment necessary for evaluating the Veteran’s service-connected low back strain with DDD for the period from March 7, 2011, to April 17, 2017. The examiner must assess retrospectively any additional functional impairment(s) after repeated use, including over time, and during flare-ups in terms of the degree of additional ROM loss. The examiner must assess retrospectively ROM on both active and passive motion, and on weight-bearing and non-weight-bearing in terms of the degree of additional ROM loss. The examiner must provide estimated retrospective assessments using, inter alia, lay observations elicited from the Veteran. In offering the above retrospective opinion, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to, the August 2011 VA examination report noting “decreased ROM and increased pain” during flare-ups, and the August 2017 VA examination report containing ROM measurements during a flare-up. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. If it is not possible to provide a specific measurement or an opinion regarding flare-ups or after repeated use, symptoms, or functional impairment(s) 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 (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not have the required knowledge or training). (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.