Citation Nr: 21023039 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-03 065 DATE: April 20, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to October 15, 2015, for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active service from July 1979 to October 1982. The Veteran appeared at an April 2019 hearing before the undersigned Veterans Law Judge at the New York, New York, Regional Office. A hearing transcript is of record. In October 2019, the Board of Veterans’ Appeals (Board) denied a rating in excess of 10 percent prior to October 15, 2015, for a lumbar spine disability. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims. In November 2020, the United States Court of Appeals for Veterans Claims granted the Parties’ Joint Motion for Partial Remand; vacated that portion of the October 2019 Board decision which denied a rating in excess of 10 percent prior to October 15, 2015, for a lumbar spine disability; and remanded the claim to the Board for additional action consistent with the Joint Motion for Partial Remand. Entitlement to a rating in excess of 10 percent prior to October 15, 2015, for a lumbar spine disability is remanded. The Parties’ Joint Motion for Partial Remand agreed that the Board did not address several reasonably raised issues including whether the Veteran experienced flare ups of the service-connected lumbar spine disability prior to October 15, 2015, and to determine whether the medical evidence was sufficient to describe functional loss during flare ups. The Joint Motion for Partial Remand agreed that the report of a February 2012 Department of Veterans Affairs (VA) spine examination was deficient for “failing to specify the degree to which flare ups would limit motion, if any.” The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims’ November 2020 Order granting the Joint Motion for Partial Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with United States Court of Appeals for Veterans Claims order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for a retrospective opinion as to the severity of a lumbar spine disability prior to October 15, 2015. The examiner must review the claims file and should note that review in the report. A rationale for all opinions should be provided. The Board recognizes the difficulty of providing a retrospective opinion, but such an opinion is required to adjudicate the claim. To the extent possible, following examination and interview of the Veteran and review of the claims file, for the period prior to October 15, 2015, the examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine for weight bearing and nonweight bearing. The examiner should specifically state at what degree of motion any observed pain began and whether there was any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (b) Indicate whether, and to what extent, the Veteran experienced functional loss of the lumbar spine due to pain or any other symptoms during flare ups or with repeated use. Based on the interview, examination, and review of the medical records, the examiner should provide an opinion as to the degree of range of motion that was limited during flare ups. (c) Note any incapacitating episodes associated with the lumbar spine disability, and their frequency and duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (d) State whether there was any ankylosis of any segment of the spine. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.