Citation Nr: 22011114 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 10-11 579 DATE: February 25, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis, spondylitis, and stenosis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1985 to November 1989 and from December 1995 to August 2011. This matter is before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2017 and November 2019 when it was remanded for further development. Regrettably, the Board finds that this issue must again be remanded for additional development. 1. Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis, spondylitis, and stenosis is remanded. In November 2019, the Board remanded the issue for a new VA examination. An addendum opinion was provided in January 2020, but the Veteran was not afforded a new VA examination. The Board requested in its remand directives that the Veteran be provided a new VA examination. As a new VA examination was not provided, passive range of motion testing of the lumbar spine and testing in non-weight-bearing could not be obtained upon remand. These were specifically requested by the Board in its prior remand directives. Further, a retrospective opinion on the Veteran's disability from August 2011 forward was not provided by the VA examiner in the January 2020 opinion. This was also requested by the Board in its prior remand directives. Based on these deficiencies, the Board finds that there has not been substantial compliance with the November 2019 Board remand directives. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, a remand for a new VA examination is necessary for full compliance with the Board's prior remand. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spondylosis, spondylitis, and stenosis. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 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). Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the August 2011 VA examination. 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. (Continued on the next page) 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. S. M. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.