Citation Nr: 21028519 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-25 673 DATE: May 11, 2021 REMANDED Entitlement to a rating higher than 10 percent for lumbosacral strain prior to December 11, 2019 is remanded. Entitlement to a rating higher than 20 percent for lumbosacral strain from December 11, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to July 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2019 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In November 2020, the Board remanded the appeal. Though the Board regrets additional delay, to ensure that the VA has met its duty to assist, an additional remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating higher than 10 percent for lumbosacral strain prior to December 11, 2019 2. Entitlement to a rating higher than 20 percent for lumbosacral strain from December 11, 2019 Remanded Issues 1-2. The Veteran contends that he is entitled to a higher rating for lumbar strain due to "the pain and suffering he has to experience on a daily basis." See NOD (July 2015). He testified that the frequency of his pain had more than doubled, and he slept in a recliner rather than his bed. See Hearing Transcript (May 2019). The November 2020 Board decision remanded the appeal for a retrospective medical opinion to supplement the May 2015 VA examination report in this matter. See BVA Decision (November 2020). Specifically, the examiner was asked to estimate "the amount in degrees of ROM [range of motion] lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion" and "the amount in degrees of ROM due to flare-ups experienced by the Veteran." Id. In forming an opinion, the examiner was to consider the evidence of record and the Veteran's statements. Although a December 2020 VA addendum opinion was obtained, it is inadequate for the following reasons. The VA medical opinion reflects that ROM can vary from exam to exam based on flare ups, repeated use and other factors that preclude a retrospective estimate for ROM. See C&P Exam (December 2020). The opinion noted that the author had not conducted an in-person examination with the Veteran and was unable to opine on the findings of another examiner. Id. The Board finds that the December 2020 opinion not only fails to provide the requested opinions but also fails to provide adequate reasons for not providing the requested information. The opinion does not indicate how a contemporaneous examination would provide the basis for a retrospective opinion or note why the examiner is unable to comment on clinical evidence (the May 2015 VA examination) in the record. It is unclear to the Board whether the inability to provide an opinion is based on (a) a deficiency in the state of general medical knowledge, (b) a deficiency in the record, or (c) the examiner's (a nurse practitioner) lack of requisite knowledge and/or skills. Therefore, it is inadequate for adjudicative purposes. Given the above, remand is again necessary to determine the current severity of the Veteran's lumbosacral strain during the appeal period by obtaining a retrospective medical opinion to supplement the May 2015 VA examination report in this matter. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Additionally, on remand, the Veteran will be provided an additional opportunity to allow VA to obtain authorization for ptivatae treatment records and request these records Additionally, the Board notes that, based on the Veteran's testimony, the record was held open to allow the Veteran to submit additional evidence in support of his claims. See Hearing Transcript (May 2019). Subsequently, the Board remanded the claim in part to allow the Veteran to submit relevant, outstanding private treatment records identified in December 2019 VA treatment records. The RO sent a November 2020 letter to the Veteran (with a copy to his representative) requesting authorization to obtain all outstanding private treatment records for non-VA medical providers who treated low back symptoms; however, no response was received. See Subsequent Development Letter (November 2020). The Veteran's representative argues that VA failed in its duty to assist by not making two separate requests for "the authorized records from all identified sources." See Appellate Brief (April 2021). VA's duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Where no records are identified by a Veteran with accompanying authorization, no request for records can be made. . In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for low back symptoms. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician in the field of orthopedics to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. NOTE(1): If it is not possible to provide a specific measurement without speculation, the clinician 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 clinician (does not have the knowledge or training). NOTE (2): In rendering the below, the clinician should estimate the effective range of motion (ROM) for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. NOTE (3): The report should describe objective evidence of painful motion, if any, during EACH test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. Current Findings (a.) Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.). (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. Retrospective Findings (c.) Provide an addendum retrospective opinion for the Veteran's service-connected low back disability to supplement the May 2015 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.