Citation Nr: 21025116 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-03 621 DATE: April 27, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to February 10, 2009, in excess of 20 percent from February 10, 2009, to November 11, 2009, in excess of 10 percent from November 12, 2009, to June 17, 2014, in excess of 20 percent from June 18, 2014, to May, 3, 2019, and in excess of 40 percent from May 4, 2019, for lumbosacral strain with intervertebral disc syndrome (IVDS) (back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to October 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2013. The Board subsequently remanded this matter in March 2014. In a November 2016 decision, the Board denied the Veteran’s appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Joint Motion for Partial Remand (JMPR) in July 2017 and remanded the matter for further development. The Board remanded this matter in September 2017 and January 2019. The Board finds that the RO did not substantially comply with the directives set forth in the January 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Of note as seen above, the Board has revised the appeal period dates to reflect the accurate dates of when the Veteran’s disability ratings changed. For example, instead of framing it as “a rating in excess of 20 percent from February 10, 2009, to November 12, 2009,” as it was written in the prior January 2019 remand, the Board has changed this to as seen above, “a rating in excess of 20 percent from February 10, 2009, to November 11, 2009,” to reflect that on November 12, 2009, the Veteran’s rating had changed to 10 percent, and was no longer 20 percent. Entitlement to a rating in excess of 10 percent prior to February 10, 2009, in excess of 20 percent from February 10, 2009, to November 11, 2009, in excess of 10 percent from November 12, 2009, to June 17, 2014, in excess of 20 percent from June 18, 2014, to May, 3, 2019, and in excess of 40 percent from May 4, 2019, for lumbosacral strain with intervertebral disc syndrome (IVDS) (back disability) is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the January 2019 remand, a VA examination and opinion were obtained for the Veteran’s back disability. The Board directed that the VA examiner determine the severity of the Veteran’s back disability from October 2, 2007, to February 10, 2009, from February 10, 2009, to November 12, 2009, from November 12, 2009, to June 18, 2014, and from June 18, 2014, to the present. The Board also directed that the VA examiner ask the Veteran to provide any statements regarding additional range of motion loss that occurred during flare ups. The examiner was told that the Veteran’s statements were to be considered competent and credible. In a June 2019 VA examination, the Veteran reported flare ups. Upon examination, the examiner determined that pain and lack of endurance caused functional loss during flare ups. The examiner was not able to describe in terms of range of motion and stated that general medical knowledge of the Veteran’s joint condition was insufficient to reasonably estimate range of motion for each plane of motion as there was great variability between veterans who had the same conditions. The Board finds this rationale a Stegall violation because the examiner was instructed to consider the Veteran’s statements. Additionally, the examiner did not consider instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare ups affect functional impairment. The Board notes that opinions answering the January 2019 Board directives was not provided. This is also a Stegall violation. In a later October 2019 VA opinion, a different VA examiner addressed the questions in the remand directives. However, regarding the severity of each appeal period, the examiner only addressed the periods from 2012 to 2017. This is a Stegall violation. Finally, the Board acknowledges that during the October 2019 VA examination, the Veteran did not report flare ups. Therefore, although in the subsequent October 2019 VA opinion, the examiner found that the Veteran appeared to have functional loss with greater than 40 degrees flexion, because the Veteran has reported flare ups prior to the October 2019 VA examination, an opinion on additional loss of range of motion during flare ups is still needed. Thus, on remand, an additional VA examination and VA opinion should be obtained to determine the severity of the Veteran’s back disability. The examiner should note that the Veteran was awarded an increased rating for his back disability effective May 4, 2019, and the Board has revised the appeal periods to be considered by the examiner, as noted above, in determining the severity of the Veteran’s back disability. The examiner should also note that from May 4, 2019, the Veteran’s back disability is rated under 38C.F.R. §4.71a, Diagnostic Code 5243 that evaluated IVDS. The regulations for evaluating musculoskeletal disabilities were amended, effective from February 7, 2021. Prior to February 7, 2021, Diagnostic Code 5243 directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Effective February 7, 2021, Diagnostic Code 5243 directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root and assign diagnostic code 5242, which evaluated degenerative arthritis and degenerative disc disease other than IVDS, for all other disc diagnoses. However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The criteria used under the General Rating Formula for Diseases and Injuries of the Spine and under the Formula for IVDS Based on Incapacitating Episodes were not amended. Prior to May 4, 2019, the Veteran’s back disability was rated under Diagnostic Code 5237, which was not changed. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. The Veteran should assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule a VA examination with an appropriate examiner to determine the severity of the Veteran’s back disability. It may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine the following: (a) The severity of the Veteran’s back disability during the following periods: October 2, 2007, to February 9, 2009; February 10, 2009, to November 11, 2009; November 12, 2009, to June 17, 2014; June 18, 2014, to May 3, 2019; and from May 4, 2019, to the present. (b) The Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the examination is not conducted during a flare-up, then the examiner should estimate functional loss based on the Veteran’s descriptions of his additional loss of function during flare-ups, gleaned from his medical records, or discerned other sources available to the examiner. The examiner must also discuss prior periods where the Veteran reported flare ups during examination and discuss the additional loss of range of motion based on the Veteran’s statements. If the clinician is unable to provide such an opinion without resort to speculation, the clinician must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The clinician must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examiner should note that effective February 7, 2021, Diagnostic Code 5243 directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root and assign diagnostic code 5242, which evaluated degenerative arthritis and degenerative disc disease other than IVDS, for all other disc diagnoses. However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.