Citation Nr: 21027947 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-28 575 DATE: May 7, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent prior to August 13, 2018 for lumbar spine degenerative arthritis with spinal stenosis and IVDS, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which awarded service connection for the Veteran's lumbar spine disability, and assigned an initial 10 percent evaluation, effective from October 2009. The Veteran appealed that initial rating. In October 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge and a transcript of the proceeding has been associated with the record. The Board issued a decision in February 2020, that among other things, denied a rating in excess of 40 percent prior to August 13, 2018. The Veteran appealed the matter to the Court of Appeals for Veterans Claims (Court). The Court issued a Joint Motion for Partial Remand (JMPR) in January 2021. The parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases for its conclusions; specifically, the Board did not address the Veteran's description of flare-ups and whether that was indicative of limitation of motion required for an increase. The JMPR suggested a retrospective medical opinion might be warranted to address this. In addition, a retrospective opinion was suggested to assess range of motion results on passive/active motion or weight bearing/non-weight bearing. The Veteran underwent VA examinations in September 2010, February 2011, and June 2013. In September 2010, the Veteran reported flare-ups that impacted his functional ability, including pain that affected "100 percent of daily activities" and an inability to walk. Further, the Veteran indicated he was only able to walk a quarter mile. The examiner noted that there was objective evidence of pain after repetitive motion testing. The 2011 examination also indicated that the Veteran experienced objective evidence of pain following repetitive motion but that there was not an additional limitation of range of motion. The 2013 examination indicated that the Veteran was on disability due to being unable to work, and that during flare-ups he was unable to walk. Given the foregoing, the Board will remand the matter for a retrospective medical opinion regarding the Veteran's lumbar spine, as the JMPR suggested. See Correia v. McDonald, 28 Vet. App. 158 (2016). The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate VA examiner and obtain a retrospective medical opinion regarding the extent and severity of the Veteran's lumbar spine disability prior to August 13, 2018. The need for a physical examination or interview with the Veteran is left to the discretion of the person conducting the review. (a.) The examiner should attempt to render specific findings as to how passive or active range of motion testing, as well as testing in non-weight-bearing and weight-bearing could have affected the measurements of range of motion testing. (b.) The examiner should also render specific findings as to the additional limitation of motion due to pain on motion, weakness, excess fatigability, or incoordination, as well as any additional functional effects. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. (c.) The examiner should estimate the functional loss, including loss of range of motion, due to flare-ups or following repeated use, based on all the evidence of record, including the Veteran's lay statements. 2. The rationale for the opinions expressed should be provided, and if it is not possible to provide the requested opinions, or information, an explanation for that conclusion should be given. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, Associate 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.