Citation Nr: 21027079 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-41 460 DATE: May 4, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to December 12, 2012, for a service-connected degenerative disc disease with anterior osteophyte formation (lumbar spine disability) is remanded. Entitlement to a rating in excess of 40 percent from December 12, 2012, for a service-connected lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Marine Corps (USMC) from July 1974 to July 1978, from August 1979 to August 1981, and from April 1982 to April 1986. He also served in the Army National Guard (ANG), with active service in the Army from August 1989 to January 1990. He had additional unverified periods of active duty for training (ACDUTRA) in the ANG and USMC Reserve. In December 2019, the Board issued a decision that (1) awarded service connection for sciatica of the bilateral lower extremities; (2) denied an initial rating in excess of 10 percent prior to December 12, 2012, for service-connected lumbar spine disability; (3) remanded the claim of entitlement to a rating in excess of 40 percent from December 12, 2012, for service-connected degenerative lumbar spine disability; and (4) remanded the claim of entitlement to service connection for obstructive sleep apnea. Following the development requested in the December 2019 decision, the agency of original jurisdiction (AOJ) issued a rating decision in February 2021 that awarded service connection for obstructive sleep apnea. This award represents a full grant of the benefits sought on appeal as to that issue; therefore, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran appealed the Board's decision with respect to the denial of an initial rating in excess of 10 percent prior to December 12, 2012, for a service-connected lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the parties to the action submitted a Joint Motion for Partial Remand (JMPR) which was adopted by the Court in an Order issued in September 2020, vacating the Board's decision as to the rating assigned to the Veteran's service-connected lumbar spine disability for the period prior to December 12, 2012. In the September 2020 JMPR, the parties agreed that a remand was necessary because the December 2019 decision relied on examinations that did not comply with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Specifically, the parties agreed that the September 2007 and June 2010 VA examination reports where insufficient to adjudicate the Veteran's claim as they did not provide an opinion on the degree of functional loss that the Veteran would experience during a period of flare symptoms. As such, consistent with the terms of the September 2020 JMPR, a remand is necessary so that a retrospective VA examination can be obtained that addresses the nature and severity of the Veteran's service-connected lumbar spine disability for the period prior to December 12, 2012. On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. In this regard, VA treatment records dated through March 19, 2021, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. As for the Veteran's claim for a rating in excess of 40 percent from December 12, 2012, for his service-connected degenerative lumbar spine disability, the Board finds that this issue is inextricably intertwined with his claim for an initial rating in excess of 10 percent prior to December 12, 2012, for service-connected lumbar spine disability for increased ratings. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of that issue at this time. The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records dated from March 19, 2021, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Schedule the Veteran for a VA examination to address the nature and severity of his service-connected lumbar spine disability for the period prior to December 12, 2012. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: a) Based on all pertinent evidence of record, the examiner should describe all symptoms associated with the Veteran's service-connected lumbar spine disability for the period prior to December 12, 2012. In this regard, the examiner should also ask the Veteran to provide a history as to the nature and severity of his service-connected lumbar spine disability during this period. b) The examiner should then ask the Veteran to report any range of motion loss during flare-ups or following repeated use for the period prior to December 12, 2012. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the evidence of record fails to including objective findings documenting the nature and severity of the Veteran's service-connected lumbar spine disability during flare-ups or following repetitive, the examiner must elicit from the Veteran relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffered during flare-ups or following repeated use. c) Then, based on the evidence of record and the information elicited during the examination, the examiner should address whether it is at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, the Veteran's flexion of the thoracolumbar spine was limited to 60 degrees or less (the measurement required for the next higher rating) for the period prior to December 12, 2012? If so, it is at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, the Veteran's flexion of the thoracolumbar spine was limited to 30 degrees or less for the period prior to December 12, 2012. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description as to the severity, frequency, and duration of flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. If examination findings conflict with the prior VA examination reports or the Veteran's lay statements, the examiner should attempt to reconcile these discrepancies to the extent possible. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.