Citation Nr: 21040210 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-35 941 DATE: July 2, 2021 REMANDED Entitlement to a higher rating for thoracolumbar strain (back disability), currently rated as 20 percent disabling, prior to December 20, 2019, is remanded. Entitlement to an initial rating higher than 10 percent for right ankle strain prior to December 20, 2019, is remanded. Entitlement to an initial rating higher than 10 percent for left ankle strain prior to December 20, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1989 to August 2012. These matters come before the Board of Veterans' Appeals (Board) from January 2013 and March 2013 rating decisions. The Veteran testified at a Board hearing in October 2017. In June 2020, the Board issued a decision that, among other things, denied a rating higher than 10 percent prior to May 3, 2017 for thoracolumbar strain, a rating higher than 20 percent for the period since May 3, 2017, but only up to December 19, 2019, for the thoracolumbar strain, a rating higher than 10 percent prior to December 20, 2019 for right ankle strain, and a rating higher than 10 percent prior to December 20, 2019 for left ankle strain. The Veteran appealed these denials to the United States Court of Appeals for Veterans Claims (Court), which, in March 2021, granted a joint motion for partial remand (JMPR), thereby vacating the abovementioned denials and remanded these matters back to the Board. 1. Entitlement to a higher rating for thoracolumbar strain (back disability), currently rated as 20 percent disabling, prior to December 20, 2019, is remanded. The question for the Board is whether the Veteran is entitled to higher ratings for his back disability during the period prior to December 20, 2019. The issue of a higher rating since December 20, 2019, was adjudicated in the June 2020 Board decision and is no longer on appeal. See March 2021 JMPR, in 03/08/2021, CAVC Decision, at 3 (indicating that the parties do not seek to disturb the portion of the Board's decision which denied Appellant entitlement to a rating in excess of 20 percent for the period since December 20, 2019, for the thoracolumbar strain). Staged ratings are in effect for the Veteran's back disability for the period prior to December 20, 2019. Specifically, the back disability is rated 10 percent disabling from September 1, 2012, to May 3, 2017, and as 20 percent disabling thereafter. In a March 2018 Board decision, which remanded the present issue, the Board found that a July 2012 VA examination for the back was inadequate for rating purposes, as it contained internal inconsistencies and failed to properly address lay evidence, and failed to adequately address the 38 C.F.R. §§ 4.40, 4.45, 4.59, Mitchell, and Deluca criteria. 03/20/2018, BVA Decision, at 14. As there is no other VA examination for the relevant period, the Board finds that the appropriate course of action in this case is to remand this matter for a VA opinion. Specifically, a VA examiner should issue a retrospective opinion regarding the severity of the Veteran's disability from September 1, 2012, to December 20, 2019. 2. Entitlement to an initial rating higher than 10 percent for right ankle strain prior to December 20, 2019, is remanded. 3. Entitlement to an initial rating higher than 10 percent for left ankle strain prior to December 20, 2019, is remanded. The question for the Board is whether the Veteran is entitled to higher ratings for his bilateral ankle disability during the period prior to December 20, 2019. The issue of higher ratings since December 20, 2019, was adjudicated in the June 2020 Board decision and is no longer on appeal. See March 2021 JMPR, in 03/08/2021, CAVC Decision, at 3 (indicating that the parties do not seek to disturb the portion of the Board's decision which denied Appellant entitlement to a rating in excess of 20 percent for the period since December 20, 2019, for the right and left ankles). For the period prior to December 20, 2019, each of the Veteran's ankles is currently rated as 10 percent disabling. In a March 2018 Board decision, which remanded the present issues, the Board found that a July 2012 VA examination for the ankles was inadequate for rating purposes, as it contained internal inconsistencies and failed to properly address lay evidence, and failed to adequately address the 38 C.F.R. §§ 4.40, 4.45, 4.59, Mitchell, and Deluca criteria. 03/20/2018, BVA Decision, at 14. As there is no other VA examination for the relevant period, the Board finds that the appropriate course of action in this case is to remand this matter for a VA opinion. Specifically, a VA examiner should issue a retrospective opinion regarding the severity of the Veteran's disability from September 1, 2012, to December 20, 2019. These matters are REMANDED for the following action: 1. Obtain a retrospective opinion from the appropriate clinician regarding the back. The examiner should review all relevant evidence (to include the Veteran's statements) and estimate the severity of his back disability from September 1, 2012, to December 20, 2019. The examiner should summarize the Veteran's documented symptoms and estimate the functional impairment experienced by him during that period. The VA examiner should consider whether it is at least as likely as not that the Veteran experienced functional loss approximating the criteria for a higher rating, namely: (a.) Is it at least as likely as not that, from September 1, 2012, to May 3, 2017, the Veteran's back disability manifested as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past? (b.) Is it at least as likely as not that, from May 3, 2017, to December 20, 2019, the Veteran's back disability manifested as forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months? The examiner must provide a complete rationale for his or her opinion(s) in the examination report. This analysis must include consideration of any additional functional loss with repeated use over time or 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). If the Agency of Original Jurisdiction (AOJ) or the VA examiner determines that there is no sufficient information in the record to make a proper assessment, an in-person examination should be considered. This in-person examination would be used to elicit information from the Veteran regarding his observable symptoms during the relevant periods noted above. 2. Obtain a retrospective opinion from the appropriate clinician regarding the ankles. The examiner should review all relevant evidence (to include the Veteran's statements) and estimate the severity of the bilateral ankle disabilities from September 1, 2012, to December 20, 2019. The examiner should summarize the Veteran's documented symptoms and estimate the functional impairment experienced by him during that period. The VA examiner should consider whether it is at least as likely as not that the Veteran experienced functional loss approximating the criteria for a higher rating, namely: (a.) Is it at least as likely as not that, from September 1, 2012, to December 20, 2019, the Veteran experienced marked limited motion (as defined by VA) of either or both ankles? The examiner must provide a complete rationale for his or her opinion(s) in the examination report. This analysis must include consideration of any additional functional loss with repeated use over time or 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). If the Agency of Original Jurisdiction (AOJ) or the VA examiner determines that there is no sufficient information in the record to make a proper assessment, an in-person examination should be considered. This in-person examination would be used to elicit information from the Veteran regarding his observable symptoms during the relevant period. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.