Citation Nr: 21041869 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-33 306 DATE: July 10, 2021 REMANDED Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) (lumbar spine disability) is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve) is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1959 to March 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the lumbar spine disability from 40 percent to 20 percent, effective January 17, 2014. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) in October 2016. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in April 2018 and May 2020 and were remanded for additional evidentiary development. In the May 2020 decision, the Board restored the 40 percent rating for the Veteran's lumbar spine disability, effective January 17, 2014. This decision was implemented in a May 2020 rating decision. In a subsequent May 2021 rating decision, the RO granted service connection for radiculopathy of the left lower extremity (sciatic nerve), right lower extremity (femoral nerve), and right lower extremity (sciatic nerve) and assigned 20 percent disability ratings, respectively. 1. Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) (lumbar spine disability) is remanded; 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve) is remanded. Pursuant to the Board's remand instructions, VA examinations were performed in May 2021 to assess the severity of the Veteran's lumbar spine disability and associated radiculopathy. However, the May 2021 examiner failed to comply with the Board's remand instructions. In this regard, in its May 2020 decision, the Board noted that the Veteran reported flare-ups of pain throughout the rating period on appeal, including during January 2014 and May 2017 VA examinations, and requested the examiner to provide an estimated motion loss in terms of degrees during periods of flare-up of pain pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). However, the examiner only noted that the Veteran denied flare-ups during the May 2021 examination and did not provide the requested estimate. Moreover, the examiner was asked to provide passive range of motion testing results. However, the examiner only indicated passive range of motion testing may cause severe pain and did not review the record and provide an estimate as instructed. Accordingly, the Board finds that a remand is warranted in order for an addendum opinion to be obtained. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from October 2020 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand, to the May 2021 examiner for an addendum medical opinion. If the May 2021 examiner is not available, request an addendum opinion from an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should review the record and provide the following: A. Provide an estimate as to the passive range of motion of the lumbar spine and note the point at which there is pain. B. Provide an estimate of the degree of lost motion during flare-ups of pain. C. Does the Veteran have unfavorable ankylosis of the entire thoracolumbar spine or entire spine or the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis? D. Throughout the rating period on appeal, or from 2013, has the Veteran suffered from any incapacitating episodes for his service-connected Intervertebral Disc Syndrome (IVDS), including due to a flare up? If so, list the duration and frequency. E. The examiner should discuss the severity of the Veteran's service-connected radiculopathy and whether, including during a flare-up, it is characterized as mild, moderate, moderately severe, or severe incomplete or complete paralysis. The examiner should elicit this information from the record. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being most confident. (Continued on the next page) The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.