Citation Nr: 21029851 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 12-06 820 DATE: May 17, 2021 REMANDED Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome (IVDS), post-operative residuals with neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to February 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in August 2016, March 2018, September 2020, and February 2021 when it was remanded for further development. IVDS, post-operative residuals with neuropathy Although the Board regrets the additional delay, the Board finds the claim must again be remanded for further development. For reasons explained immediately below, a remand is necessary for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In the most recent February 2021 remand, the Board directed that the October 2019 VA examiner (or another suitable clinician if the examiner was not available), clarify conflicting information in the October 2019 VA examination report. Although the Veteran performed ranges of motion at the examination, the examiner also noted that the Veteran had favorable ankylosis of the entire thoracolumbar spine. The examiner was asked to explain which information was accurate and explain why. If the examiner found that a new examination was necessary, then one should be scheduled. An opinion was provided in December 2020. The clinician, who was not the October 2019 VA examiner, reviewed the claims file and indicated that the October 2019 VA examination documented a diagnosis of IVDS, and physical examination was negative for evidence of spinal joint ankylosis. "Ankylosis" meant fused bones or other hard tissue. The Veteran had no consistent clinical evidence for spinal joint ankylosis. However, the clinician did not specifically respond to the question outlined in the February 2021 remand directives, to address the conflicting information in the October 2019 VA examination. Although it is the responsibility of the Board to weigh medical evidence, the Board is mindful that it cannot make its own independent medical determinations as to why the October 2019 VA examiner indicated that the Veteran had favorable ankylosis of the entire thoracolumbar spine despite the Veteran retaining movement in his spine. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Also, the Board notes that in September 2020, the matter was remanded by the Board to afford the Veteran a new VA examination to determine the current nature and severity of the Veteran's IVDS disability. A review of the evidence does not indicate that an examination was scheduled, and the fact that an examination was not scheduled was not addressed in the February 2021 remand. In order to ensure compliance with the previous Board remands, a new VA examination is warranted on remand. Also, on remand, any updated VA treatment records should be obtained and associated with the electronic claims file. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected IVDS, post-operative residuals with neuropathy. The electronic claims file, along with a copy of this remand, must be reviewed by the examiner. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner must also indicate whether the Veteran has ankylosis, favorable or unfavorable, of his spine. An explanation is necessary if there are inconsistent results with range of motion measurements. The examiner must also indicate whether the Veteran experiences ankylosis or the equivalent during flare-ups. 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). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.