Citation Nr: 21041849 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-32 791 DATE: July 10, 2021 REMANDED Entitlement to an effective date earlier than April 26, 2017 for the assignment of a 40 percent rating for discogenic disease of the lumbar spine (hereinafter, "lumbar spine disability") is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1980 to March 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona. In January 2020, the Board entered a decision denying an effective date earlier than April 26, 2017 for the assignment of a 40 percent rating for the Veteran's service-connected lumbar spine disability. The Board also determined that an effective date no earlier than May 19, 2011 was warranted for the assignment of a separate 20 percent rating for left lower extremity radiculopathy and myopathy. The Veteran appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied an effective date earlier than April 26, 2017 for the assignment of a 40 percent rating for the Veteran's lumbar spine disability and remanding that matter for readjudication. The appeal with respect to the left lower extremity radiculopathy and myopathy was dismissed. Entitlement to an effective date earlier than April 26, 2017 for the assignment of a 40 percent rating for lumbar spine disability is remanded. Generally, the effective date of an award of increased compensation shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). An exception to that rule applies only under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period preceding the date of receipt of the claim for increased compensation. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). If the increase occurred more than one year prior to the date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2). As detailed in the January 2020 decision, the Board has determined that the date of receipt of the claim underlying this appeal is May 19, 2011. In the January 2020 decision, the Board found, in pertinent part, that the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine had not been met prior to April 26, 2017. In that regard, it was noted that the evidence did not establish forward flexion limited to 30 degrees or less, or favorable or unfavorable ankylosis of the entire thoracolumbar spine, during the period on appeal prior to April 26, 2017. In the JMPR filed with the Court, the parties to the appeal agreed that the Board failed to address functional loss caused by reported flare-ups and pain during the period on appeal. It was noted that a July 2011 VA examination noted that the Veteran experienced "severe flareups 2 to 3 times per week, lasting for hours," and that the examiner noted that the Veteran's "major functional impact is pain" and therefore he had loss of function with use. Because the Board's analysis did not include a discussion of the functional impact caused by flare-ups and pain in 2011 and whether that would entitle the Veteran to an earlier effective date for the award of the 40 percent rating for his lumbar spine disability, the parties agreed that the analysis was insufficient. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that, when evaluating disabilities of the joints, a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, and functional loss during flare-ups. Id. at 34-36. If the Veteran has flare-ups and an examination is not conducted during a flare-up, the examiner should estimate functional loss during flare-ups or explain why it is not possible to do so. Id. The Board observes that the Veteran was afforded VA examinations of the lumbar spine during the period at issue, to include in July 2011 and April 2017. However, no opinion was offered regarding the effect of pain on functional ability, to include during flare-ups. Because the record does not contain the medical data necessary for the Board to make such an assessment, additional development is warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. After the foregoing development has been completed to the extent possible, make arrangements to provide the claims file to an appropriately qualified clinician for purposes of providing a retrospective opinion regarding the severity of the Veteran's service-connected lumbar spine disability during the period on appeal prior to April 26, 2017. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. The examiner should be asked to indicate whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that, during all or any portion of the period in question from May 29, 2011 to April 26, 2017, the Veteran had pain on active motion, passive motion, in weight bearing, and/or in non-weight bearing. The examiner should also be asked to indicate whether it is at least as likely as not that, during all or any portion of the period in question from May 19, 2011 to April 26, 2017, the Veteran experienced functional loss due to flare-ups or repeated use over time. If the answer to that question is yes, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. More specifically, the examiner should indicate whether, during all or any portion of the period in question from May 19, 2011 to April 26, 2017, it is at least as likely as not that the Veteran experienced functional loss that was functionally equivalent to forward flexion limited to 30 degrees or less and, if so, how frequently he experienced that level of functional loss, and for how long. The examiner should also indicate whether it is at least as likely as not that the Veteran experienced functional loss that was functionally equivalent to ankylosis of the thoracolumbar spine and, if so, whether it was more closely equivalent to favorable or unfavorable ankylosis, and how often such functional impairment occurred, and how long it lasted. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. A complete rationale for all opinion(s) expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.