Citation Nr: 21025063 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-16 251 DATE: April 27, 2021 REMANDED Entitlement to service connection for an inguinal hernia, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disability for the period from July 28, 2008 to December 16, 2008 is remanded. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine disability for the period from December 17, 2008 to December 8, 2010 and from February 1, 2011 to October 15, 2019 is remanded. Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disability from October 16, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to August 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a decision in May 2017 denying service connection for an inguinal hernia and denying an increased rating for a service-connected lumbar spine disability for the period from December 17, 2008 to December 9, 2010 and from February 1, 2011. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and in May 2018, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran’s representative and the VA General Counsel. In February 2019, the Board remanded the claims for further development consistent with the JMPR. In an April 2020 rating decision, the RO granted a 40 percent rating for the Veteran’s service-connected lumbar spine disability from October 16, 2019. In July 2020, the Board again remanded the Veteran’s claims. 1. Entitlement to service connection for an inguinal hernia, to include as secondary to service-connected lumbar spine disability. 2. Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disability for the period from July 28, 2008 to December 16, 2008. 3. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine disability for the period from December 17, 2008 to December 8, 2010 and from February 1, 2011 to October 15, 2019. 4. Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disability from October 16, 2019. Issues 1 – 4: The Veteran, via his representative, contends that his inguinal hernia resulted from his service-connected lumbar spine disability. See Appellate Brief (April 2017). With regard to increased rating claims for lumbar spine disability, the Veteran generally asserts that his lumbar spine disability warrants a higher rating. For reasons explained below, the Board finds that remand is necessary. The Board also finds that there has not been substantial compliance with the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). First, the available medical evidence and the Veteran’s statements indicate that there are outstanding VA treatment records. A July 2008 private treatment note provides the Veteran’s reports of being evaluated and treated through VA. See Medical Treatment Record - Non-Government Facility (January 2011). In a January 2011 statement, the Veteran provided that he started to see a back specialist due to his inability to cope with pain. See VA 21-4138 Statement In Support of Claim (January 2011). The Veteran did not detail whether he saw a VA or private specialist. An April 2016 VA Back examination shows that the Veteran saw a physician “depending on severity” of his flare-ups. See C&P Exam (April 2016). It does not appear that the RO attempted to obtain any VA treatment records other than from March 1996 to September 1998. See Medical Treatment Record - Government Facility (February 2009), CAPRI (April 2020). Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); 38 C.F.R. § 3.159(c). Any outstanding VA treatment records must be obtained on remand. Pursuant, to an increased rating claim for lumbar spine disability, in its remand, the Board requested a retrospective opinion to provide the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing; the severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups. See BVA Decision (July 2020). The October 2020 VA medical opinion (VAMO) and an identical January 2021 VAMO on lumbar spine disability were based, at least partly, on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In this regard, the examiner noted that he was unable to provide range of motion estimates without resorting to mere speculation based in part on flare-ups not being reported at the April 2016 VA examination. See C&P Exam (October 2020 & January 2021). A review of the April 2016 VA examination, however, shows that the Veteran reported flare-ups about once a month with pain increasing to 7 or 8 out of 10 and lasting from three to 10 days. See C&P Exam (April 2016). Additionally, as relevant to the Veteran’s increased rating claims for lumbar spine disability, the October 2019 VA examination notes lumbar spine pain in nonweight-bearing, as well as on passive range of motion. See C&P Exam (October 2019). However, the examination report does not note specifically at which point in degrees this pain begins. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, given the above, remand for a new VA examination for the Veteran’s increased rating claims for lumbar spine disability to adequately address the Correia standards is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The new examinations should include specific findings regarding the Veteran’s ROM, for his lumbar spine, in active motion, passive motion, weightbearing, and non-weightbearing. Moreover, retrospective supplemental findings should be requested from the examiner on remand. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a “retrospective” medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records through the Present. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. As to the below, if it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (a.) Test the Veteran’s active motion, and passive motion, with weight-bearing and without weight-bearing. Note: The examiner should determine the effective range of motion (ROM) for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner’s report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced ROM during flares or repetitive use. Retrospective Findings Following a review of the record, after all outstanding VA treatment records have been associated with the claims file, the clinician should provide retrospective findings for the below identified past examinations. (c.) Provide an addendum retrospective opinion for the Veteran’s service-connected lumbar spine disability to supplement the December 2008 and April 2016 VA Examination Reports that: i. Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran’s statements. (Continued on the next page)   ii. Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran’s statements. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.