Citation Nr: 21028461 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 07-13 486A DATE: May 11, 2021 REMANDED A rating higher than 20 percent for lumbosacral strain, degenerative disc disease L4-L5, prior to April 13, 2016, is remanded. Entitlement to special monthly compensation (SMC) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service from September 1997 to December 2003. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which reduced the rating assigned for the lumbar spine disability to 10 percent effective October 1, 2006. The Veteran presented testimony at a personal hearing before a Veterans Law Judge in July 2013. A transcript is of record. In an October 2013 decision, the Board restored the 20 percent evaluation from the date of the reduction and remanded the claim for increased rating for additional development. The Board remanded the claim for increased rating again in March 2015, including the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In a September 2016 rating decision, the rating assigned for the lumbar spine disability was increased to 40 percent effective April 13, 2016, and the claim for TDIU was denied. The Veteran and her husband presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in February 2019. A transcript is of record. All Veterans Law Judges who conduct hearings must participate in making the final determination of the claims on which testimony was received. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102 (a). Thus, where hearings have been held before two separate Veterans Law Judges on the same issue or issues during the appeal, a third Veterans Law Judge is assigned to the panel. At the time of the February 2019 hearing, the Veteran waived her right to a hearing before a third Veterans Law Judge. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board issued a panel decision in September 2019 that denied a rating higher than 20 percent for lumbosacral strain, degenerative disc disease L4-L5, prior to April 13, 2016, and a rating higher than 40 percent for that disability as of April 13, 2016. The claim for entitlement to a TDIU was remanded. Entitlement to a TDIU was granted in a May 2020 rating decision effective October 1, 2013. In March 2021, the Veteran's attorney filed a VA Form 20-0996 seeking higher level review of the effective date assigned in that rating decision. The Veteran appealed the Board's September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an undated Joint Motion for Partial Remand, the parties requested that the Court vacate the September 2019 Board decision that denied entitlement to a rating higher than 20 percent for lumbosacral strain, degenerative disc disease L4-L5, prior to April 13, 2016. In a June 2020 Order, the Court granted the Joint Motion. The Veterans Law Judge who conducted the July 2013 hearing is no longer employed by the Board. As the undersigned is now the only Veterans Law Judge who has held a hearing in this case, a single judge decision on these matters is appropriate. 1. A rating higher than 20 percent for lumbosacral strain, degenerative disc disease L4-L5, prior to April 13, 2016, is remanded. The Joint Motion determined that the Board erred in finding VA satisfied its duty to assist, specifically its duty to obtain an adequate medical examination and opinion, since the VA examinations of record did not adequately consider the Veteran's reports of pain and an assessment of functional loss during flare-ups and after repeated use over time consistent with the Court's holdings in Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Joint Motion also cited Correia v McDonald, 28 Vet. App. 158, 168-170 (2016) regarding joint disability testing. Given that the timeframe being considered is in the past, the Board finds that a retrospective medical opinion would be helpful in this case to address the shortcomings noted in the Joint Motion. 2. Entitlement to SMC is remanded. The Joint Motion determined that the Board erred by failing to address the issue of entitlement to SMC. Such matter is intertwined with the other issue being remanded. The matters are REMANDED for the following action: 1. Send the claims file to an orthopedist, if available, for a retrospective medical opinion on what the functional impact of the Veteran's lumbar spine disability was prior to April 13, 2016, after repeated use over time and during flare-ups. The examiner should provide an opinion as to range of motion of the lumbar spine from October 1, 2006in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If it is not possible or appropriate to provide such information for the lumbar spine, the examiner should so state and explain why. The examiner should also state whether there was likely to be additional range of motion loss in the lumbar spine due to repetitive use and/or flare-ups because of pain, weakness, fatigability, or incoordination between October 1, 2006, and April 13, 2016. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If it is not possible to provide a specific measurement, or an opinion regarding repetitive use, flare-ups, symptoms, or functional impairment 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). 2. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.