Citation Nr: 21030019 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 12-27 386 DATE: May 17, 2021 THE ISSUE Entitlement to a higher rating for lumbar spine degenerative disc disease, evaluated as 10 percent disabling prior to November 12, 2020 and 40 percent thereafter. REMANDED Entitlement to a higher rating for lumbar spine degenerative disc disease, evaluated as 10 percent disabling prior to November 12, 2020 and 40 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on ative duty from September 1998 to September 2002. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision from May 2010 from a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a May 2010 rating decision, the Veteran was granted service connection for lumbar spine degenerative disc disease with an evaluation of 10 percent effective November 24, 2009. The Veteran filed a notice of disagreement in May 2010. A September 2012 Statement of the Case (SOC) denied the Veteran's appeal. The Veteran then filed a timely VA Form 9 Substantive Appeal in September 2012, requesting a Board hearing. In December 2019, the Veteran testified before a Veterans Law Judge. A copy of the transcript is of record. This hearing was before a judge who has since retired. The Veteran was given the opportunity to request another hearing and was notified in March 2021 that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed. This matter was last before the Board in June 2020 at which time it was remanded in order to afford the Veteran a new VA lumbar spine examination and medical opinion as to the severity of his back disability for all periods on appeal. In a subsequent November 2020 rating decision, the RO granted an increased rating of 40 percent for the lumbar spine disability effective November 12, 2020. That increased rating is not considered a full grant of benefits sought, and thus the claim for increased rating remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Although the Board regrets the further delay, we find that an additional remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a higher rating for lumbar spine degenerative disc disease, evaluated as 10 percent disabling prior to November 12, 2020 and 40 percent thereafter is remanded. In its June 2020 decision, the Board found that while the Veteran was afforded two VA examination for his lumber spine degenerative disc disease during the period on appeal, the examinations did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). See March 2010 VA examination; May 2014 VA examination. The VA examiners elicited relevant information regarding the description of the Veteran's flare-ups, but the March 2010 VA examiner did not provide an opinion about functional loss during a flare up and the May 2014 VA examiner indicated that an opinion about any additional functional loss could not be provided because it was not observed, and not due to lack of knowledge within the medical community. In addition, the Board found the March 2010 and May 2014 VA examinations did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examinations did not contain passive range of motion measurements or pain on weight-bearing testing. Therefore, the Board remanded the matter in order to afford the Veteran a new VA examination for his lumbar spine disability. The examiner was directed to provide an evaluation of the current severity of the Veteran's lumbar spine disability, but also, in pertinent part, an opinion of the severity of the disability during the entire period on appeal. The Veteran was afforded such an examination in November 2020. Based on the examination, the Veteran was awarded a 40 percent disability rating effective November 12, 2020, the date of the examination. This is the highest schedular disability rating allowable by law based on limitation of range of motion of the lumbar spine. See General Rating Formula for Diseases and Injuries of the Spine. In order to receive a higher disability rating, the Veteran must show unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Id. While the November 2020 VA examination does not contain results of passive range of motion testing, with the examiner writing "cannot be performed or is not medically appropriate," the Board finds that a remand for a new examination is not warranted, as the Veteran is already in receipt of the maximum disability rating based on limitation of motion of the lumbar spine. However, the report failed to opine as to the severity of the Veteran's lumbar spine disability for the entire period on appeal, specifically, the period prior to November 12, 2020. Because the Board found that the previous examinations were inadequate for rating purposes, and directed the November 2020 examiner to provide an opinion as to the severity of the Veteran's lumbar spine disability for the entire period on appeal, a remand is necessary in order to afford the Veteran an addendum opinion which complies with the June 2020 remand directives. Stegall, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Return the claims file and a copy of this Remand to the November 2020 VA examiner, or suitable substitute, for the purposes of obtaining a retrospective opinion regarding the severity of the Veteran's lumbar spine disability during the entire period on appeal. A new examination is not required, but if the examiner determines that an additional examination is necessary in order to address the following issues, one should be provided. After a complete review of the claims file and a note that it was reviewed, the examiner should address the following: The VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing, and during flare-ups can be estimated for the other VA examinations conducted during the appeal period. See, e.g., March 2010 and May 2014 VA examination reports. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. 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. The examiner should consider and discuss the March 2010 and May 2014 VA examination findings for the Veteran's back. The examiner should also consider the discuss the September 17, 2009, chiropractic and orthopedic examination report from a private treatment provider. 2. Review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above if deemed warranted by the AOJ, and re-adjudicate the claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.