Citation Nr: 21023119 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 09-01 947 DATE: April 20, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period prior to August 14, 2019 is remanded. REASONS FOR REMAND The Veteran had active service from July 1981 to June 1984 and from October 1987 to March 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board five times prior. In July 2010, April 2014, February 2016, and November 2017 the Board remanded this issue for additional development. In January 2020 the issue returned to the Board and an increased rating was denied. Following the January 2020 denial the Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (CAVC). In a November 2020 Joint Motion for Remand, the parties agreed to vacate and remand the part of the Board’s January 2020 decision which denied the Veteran’s claim for a rating of greater than 20 percent for the period prior to August 14, 2019. The Board was to review the August 2019 VA examination and determine if a greater rating could be issued. If not, the Board was instructed to obtain a new VA examination and a retrospective opinion to address the functional impact of pain, weakness, fatigability, or incoordination on the Veteran’s lumbar spine disability during flare-ups and after repetitive use. 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period prior to August 14, 2019 is remanded. The CAVC Joint Motion for Remand requires this Board to review the August 2019 VA examination and determine if the evidence contained therein allows for a higher rating for the period prior to August 14, 2019. The Veteran’s degenerative disc disease of the lumbar spine is currently rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). To obtain a rating of 40 percent forward flexion of the thoracolumbar spine must be shown to be 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The Veteran’s associated neurological abnormalities are rated under a separate diagnostic code. Range of Motion (ROM) measurements taken at the August 2019 VA examination show flexion ending at 40 degrees, extension at 15, left lateral flexion at 12 degrees, left lateral rotation at 20 degrees, right lateral flexion at 15 degrees, and righter lateral rotation at 18 degrees. Pain on movement was noted as causing functional loss. Repetitive use testing, repeated use, and flare-ups all showed loss of ROM. Forward flexion was found to be 26 degrees based on those tests. No evidence of ankylosis was noted. The examiner did state the Veteran had intervertebral disc syndrome (IVDS) but that there were no incapacitating episodes over the last 12 months. The information presented in the August 2019 VA examination supports a 40 percent rating for the Veteran’s lumbar spine disability. However, there is no indication in the record that this same level of impairment was present prior to the date of the examination. Given that the August 2019 VA examination does not support the Veteran’s claim for an increased rating prior to August 14, 2019, the Board will remand the matter to obtain a new VA examination as well as a retrospective opinion. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination and retrospective opinion by an examiner with sufficient expertise to determine the level of severity of the Veteran’s lumbar spine disability. The examiner should provide an opinion regarding the level of severity of all impairment resulting for the Veteran’s service-connected lumbar spine disability prior to August 14, 2019. Specifically, the examiner should provide an opinion as to whether the Veterans’ service-connected lumbar spine disability, prior to August 14, 2019, resulted in or more closely approximated forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the thoracolumbar spine. In rendering the requested opinion, the examiner should specifically consider and address the Veteran’s ROM following repeated use and during flare-ups. The examiner should discuss the functional impact of pain, weakness, fatigability, or incoordination on the Veteran’s lumbar spine disability during flare-ups and after repetitive use The claims file must be made available to, and reviewed by, the examiner. The examiner should provide all information required for rating purposes. A rationale for all opinions expressed must be provided. 3. Then, readjudicate the remaining issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.