Citation Nr: 21022528 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 12-26 895 DATE: April 16, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a lumbar disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Marine Corps from January 1999 to January 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board in February 2018 when it was remanded for additional development. 1. Entitlement to a rating in excess of 10 percent for a lumbar disability is remanded. The Board remanded this issue in February 2018 to schedule the Veteran for an examination as well as obtaining a retrospective opinion on functional loss. A retrospective opinion in February 2020 was obtained. However, the examiner stated that he was unable to provide a rational basis regarding functional loss or motion concerning repetitive use or during flare-ups based on his medical knowledge and expertise. The examiner did not address any evidence from the prior examinations. In this regard, it is unclear whether the examiner was unable to provide the requested information based on his knowledge and experience or due to a deficiency in the state of general medical knowledge. As such, an additional retrospective opinion should be obtained to address the Board’s prior remand directives with an examiner with appropriate expertise. Additionally, as the Board is remanding this issue to obtain an additional retrospective opinion, the Board finds that one further attempt at scheduling the Veteran for an examination should be made. The Board acknowledges that the Veteran did not attend the scheduled examinations after the last Board remand. However, as this issue is being remanded, a final attempt at scheduling an examination for the Veteran should be made as it would beneficial in adjudicating this issue. If the Veteran declines the examination, proper documentation must be shown in the claims file. In remanding these claims, the Veteran is notified that the duty to assist is not a one-way street; a claimant is obligated to cooperate in the development of a pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In short, any further failure to appear for examinations, as scheduled, may result in the denial of the issues on appeal. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records.   2. After completing #1, schedule an examination to assess the current nature and severity of his service-connected lumbar disability. Send the file to an appropriate examiner with sufficient experience and/or expertise in orthopedic matters, and ask the clinician to review the claims file. Ensure the examiner has access to the claims file, to include a copy of this Remand. If it is not possible to provide a specific measurement based on direct observation, the examiner is to provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is 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 does not have the needed knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner is also requested to provide a retrospective opinion regarding the limitation of motion of the Veteran’s service-connected lumbar disability for the period on appeal (from August 2011) up to the date of this examination/opinion. The examiner is asked to provide a response to the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that as a result of pain, fatigability, weakness, lack of endurance, or incoordination after repeated use over time, the Veteran had limitation of flexion of the thoracolumbar spine to 60 degrees or less, or combined range of motion of 120 degrees or less, at any time from August 2011 to present? (b.) If the answer to (a) is yes, is it at least as likely as not (50 percent or greater probability) that as a result of pain, fatigability, weakness, lack of endurance, or incoordination after repeated use over time, the Veteran had limitation of flexion of the thoracolumbar spine to 30 degrees or less at any time from August 2011 to present? (c.) Is it at least as likely as not (50 percent or greater probability) that as a result of pain, fatigability, weakness, lack of endurance, or incoordination during flare-ups, the Veteran had limitation of flexion of the thoracolumbar spine to 60 degrees or less, or combined range of motion of 120 degrees or less, at any time from August 2011 to present? (d.) If the answer to (c) is yes, is it at least as likely as not (50 percent or greater probability) that as a result of pain, fatigability, weakness, lack of endurance, or incoordination during flare-ups, the Veteran had limitation of flexion of the thoracolumbar spine to 30 degrees or less at any time from August 2011 to present? A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is 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 does not have the needed knowledge or training). If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, Associate 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.