Citation Nr: 21022869 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-13 308 DATE: April 19, 2021 REMANDED Entitlement to a disability rating in excess of 60 percent for lumbar strain with degenerative disc and joint disease is remanded. Entitlement to a disability rating in excess of 60 percent for cervical strain with degenerative disc and joint disease is remanded. INTRODUCTION The Veteran served on active duty from October 1992 to July 1995, April 1998 to January 1999, and April 1999 to April 2002. In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When this case was previously before the Board in November 2019 the above-noted claims were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay of the above-noted claims is unfortunate, the Board finds further development is required before the claims are decided. The Veteran recently underwent VA back and neck examinations in January 2020. Following those examinations, the examiner provided very thoughtful and well-articulated retrospective medical opinions addressing the Veteran’s cervical and lumbar spine disabilities. Though the Board appreciates the commendable attention the examiner provided this case, the Board finds some additional questions remain unanswered, and as such, addendum medical opinions must be obtained prior to final adjudication of the above-noted claims. In the course of the November 2019 remand, the Board explained that an assessment of the Veteran’s flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion were necessary to properly evaluate the Veteran’s cervical and lumbar spine disabilities. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). Unfortunately, the January 2020 examiner did not provide range of motion assessments during flare-ups, or with weight bearing, non-weight bearing, or in passive motion. As such, a remand is required to obtain those range of motion measurements, or a statement from the examiner as to how and why those range of motion measurements could not be obtained/provided. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in his examination and retrospective medical opinion the January 2020 examiner indicated the Veteran experiences neck and back flare-ups every day, which result in constant severe pain. The examiner also indicated the Veteran’s flare-ups cause him to be laid up at home for 1-2 months at a time where he is incapacitated. Based on these indications, the examiner is also asked to explain whether the Veteran’s flare-ups render him functionally ankylosed during his significant periods of incapacitation. Accordingly, these matters are REMANDED for the following actions: Obtain the following retrospective addendum medical opinions from the January 2020 VA examiner if available, and if unavailable from an examiner with sufficient expertise to provide answers to the following inquiries. Another examination of the Veteran must be performed only if deemed necessary by the examiner providing the opinions. The examiner should state whether during his extensive and severe incapacitating flare-up episodes the Veteran experiences unfavorable ankylosis of the entire spine as a result of his service-connected cervical and thoracolumbar spine disabilities? In this respect, the examiner is advised that pursuant to VA law, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Additionally, the examiner is asked to provide cervical and lumbar spine range of motion measurements for the following areas of assessment: a) passive range of motion; b) weight-bearing range of motion; c) non-weight bearing range of motion; and d) range of motion during flare-ups. If the examiner is unable to conduct the required testing or concludes any required testing is not necessary, he or she should be directed to clearly explain why that is so. If the examiner determines any of the above-requested retrospective opinions is not possible, or would be speculative, the examiner must state whether this is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.