Citation Nr: 21040953 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-33 777A DATE: July 7, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability from September 30, 2008 to October 23, 2017, excluding a period of convalescence from January 2, 2010 to June 1, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to June 1997. This matter was last before the Board in February 2020, whereupon the Board issued a decision denying entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period prior to October 23, 2017. Following the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) issued a March 2021 Joint Memorandum of Remand (JMR) vacating the denial of entitlement to the increased rating for the lumbar spine disability during the staged period and returned the case to the Board. The matter is now being further remanded for action commensurate with the Court's orders in the JMR. The Court in the March 2021 JMR found fault with the Board's reliance of a July 2013 VA opinion in determining that a rating in excess of 20 percent for the lumbar spine disability was not warranted. Specifically, the Court noted that the July 2013 examiner did not set forth findings regarding range-of-motion testing on passive and active motion and under weight-bearing and non-weight bearing circumstances, consistent with the Court's prior finding in Correia v. McDonald. 28 Vet. App. 158 (2016). Vacatur was effectuated in order to have the Board either secure a retrospective opinion estimating the above-detailed range-of-motion testing results for the period at issue or provide a justification for why such an opinion was not necessary. The Board is not entitled to make such estimations as to specific range-of-motion testing results and must rely on the findings of an objective medical professional. Accordingly, this matter must be remanded to the Agency of Original Jurisdiction (AOJ) in order to secure an addendum opinion from a qualified medical professional who can provide a retrospective estimation of range-of-motion testing results from the period at issue that satisfy the Court's requirements in Correia. Similarly, the Board notes that despite the fact that the Veteran reported experiencing flare-ups of additional lumbar spine symptomatology during the July 2013 VA examination, the examiner did not set forth estimations as to any additional disability that may have arisen during such flare-ups. Thus, on remand, the Board also requests that the chosen examiner provide estimations as to the degree of additional symptomatology the Veteran would have experienced during flare-ups during the time period in question. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The matters are REMANDED for the following action: Schedule the Veteran for a VA orthopedic examination with a VA medical professional to retrospectively ascertain the severity of the Veteran's lumbar spine disability for the period from September 30, 2008 to October 23, 2017. All lumbosacral symptomatology associated experienced by the Veteran during this time period should be identified. In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must estimate the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing during the time period in question. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limited functional ability during flares or repetitive use, and, if so, the examiner must estimate what the range of motion was during flares or repetitive use. The examiner should specifically interview the Veteran about the nature of the flare-ups that he reported on the July 2013 VA spine examination, and then assess this impairment during flare-ups and provide retroactive opinions as to any additional functional loss during flare-ups at that time and an estimate of that loss in terms of degrees reduction in range of motion. If the examiner cannot provide the above-requested opinions without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which, if obtained, would allow an opinion. The examiner shall review the entire claims file, to include all lay statements and include a copy of this REMAND in the examination report. All opinions and conclusions must be accompanied by a rationale. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.