Citation Nr: 21028437 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 09-15 036 DATE: May 11, 2021 REMANDED A rating higher than 10 percent for a lumbar spine disability, from March 26, 2006 to August 24, 2017, is remanded. A rating higher than 40 percent for a lumbar spine disability, from August 25, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1998 to March 2006. In July 2020, the Court of Appeals for Veterans Claims (Court) granted a joint motion to remand his increased rating claim to the Board of Veterans' Appeals (Board). The Board then remanded to the agency of original jurisdiction (AOJ) for a new examination in December 2020. The Board provided detailed remand instructions, consistent with the terms of the joint motion. In particular, the Board directed the examiner to offer an opinion as to whether there would be additional limits on functional ability during any reported flare-ups. The examiner was asked to describe any functional loss in terms of additional degrees of limitation of motion beyond that shown clinically. The Board also requested a retrospective opinion on flare-ups and associated functional loss from March 26, 2006 to August 24, 2017. The examiner was to "consider[] the relevant medical evidence of record as well as the Veteran's competent complaints during this time period." The Board asked the examiner to provide a rationale for all opinions rendered, to discuss the relevant facts and medical principles, and, if unable to provide an opinion, to explain why. The Veteran received a new examination in February 2021. Because the examiner failed to substantially comply with the instructions above, another remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the 2021 examination, the Veteran reported flare-ups of sharp pressure in the low back during busy times at work, 3-4 times a year. These flare-ups reportedly last 14-16 hours, are precipitated by standing, bending, and walking, and are alleviated by Ibuprofen and Biofreeze. He described them as "moderate" in severity, and stated that he will need to lay down for a few hours when they occur. Despite this account, the 2021 examiner simply answered "no" in response to the question "Does procured evidence (statements from the Veteran) suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups?" on the disability benefits questionnaire. The examiner offered no rationale in support of this opinion. Nor did the examiner attempt to estimate any additional loss in range of motion. As such, the opinion on current functional loss due to flare-ups is inadequate. See e.g. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). As for the retrospective opinion, the 2021 examiner wrote the following: "The [claims file] was reviewed. The majority of evaluations for this condition are for [Compensation and Pension] examinations. There is a consultation 2/5/10. There is no objective evidence supplied to support flare ups that require medical care." This opinion, too, is inadequate in that the examiner states that they reviewed evidence without actually discussing any of it. The examiner's rationale also suggests that they improperly relied on a lack of "objective" medical evidence, while discounting the Veteran's lay statements. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Most importantly, the opinion is not responsive to the Board's question, as the examiner did not directly address whether the Veteran experienced additional functional loss with flare-ups during this period. Another remand is necessary to ensure compliance with the Board's previous instructions. Stegall, 11 Vet. App. at 271; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). On remand, the examiner must provide adequate opinions on functional loss due to flare-ups for the periods on appeal, based on all the evidence of record, including the October 2007, September 2008, November 2010, August 2017, and February 2021 examinations. Another in-person examination is not required unless the examiner deems one necessary to render a fully-informed opinion. The Board notes that medical records were last associated with the claims file in 2017, and the most recent records on file are now 10 years old. The Veteran's statement to the 2021 examiner that he goes to a chiropractor 1-2 times a week suggests there are outstanding treatment records relevant to this appeal. The AOJ should attempt to obtain them before requesting new opinions and/or a new examination. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. Associate the records with the claims file. 3. Obtain addendum opinions from an appropriate clinician regarding the extent of functional loss during flare-ups (a) from March 26, 2006 to August 24, 2017, and (b) since August 25, 2017, based on all the evidence of record. Schedule the Veteran for a new examination only if the examiner deems it necessary to render a fully-informed opinion. At a minimum, the examiner must discuss the Veteran's lay statements and the relevant clinical findings from the October 2007, September 2008, November 2010, August 2017, and February 2021 examinations. For each period, the examiner should provide an estimate of additional impairment due to flare-ups, in terms of additional degrees of limitation of motion beyond what was recorded on the previous examinations. 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). The examiner must provide a clear rationale for all opinions rendered, discuss the relevant facts and medical principles, and, if unable to provide an opinion, explain why. 4. Review the medical opinions above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 5. Readjudicate the claims in a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.