Citation Nr: 22012332 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 15-00 301A DATE: March 3, 2022 REMANDED Entitlement to an increased rating in excess of 20 percent for chronic lumbar strain is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Marine Corps from September 2003 to April 2005. This matter comes to the Board of Veterans' Appeals (Board) from an appeal of a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board in December 2018, February 2021, and August 2021, being remanded for both current and retrospective opinions. The Board has yet to obtain that retrospective opinion. See Stegall v. West, 11 Vet. App. 268 (Vet. App. 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). The Board notes that during the pendency of the appeal, the Veteran was granted an increase from 10 percent to 20 percent for the entire period on appeal in a June 2020 rating decision. Where a partial grant has been implemented during the pendency of the appeal, the Board considers the claim to still be on appeal if the maximum rating was not assigned. See AB v. Brown, 6 Vet. App. 35 (Vet. App. 1993). Unfortunately, another remand is necessary in order to obtain an adequate medical opinion. 1. Entitlement to an increased rating in excess of 20 percent for chronic lumbar strain is remanded. The Veteran asserts that the symptoms, loss of function, and resulting pain from his lumbar spine disability exceeds that of the current 20 percent disabling rating. See February 2022 informal hearing presentation (IHP). In all three of the previous Board remands, the Board has attempted to obtain a retrospective opinion from an appropriate medical clinician regarding the functional limitation of the Veteran's lumbar spine disability during flare-ups or after repeated use over time, expressed in range of motion, at the time of the Veteran's April 2014 VA examination. See December 2018 Board Remand; February 2021 Board remand; August 2021 Board remand. The problem with the April 2014 VA examination is that while the examiner accepted the Veteran's reports of flare-ups, the examiner refused to answer as to whether these flare-ups impacted the function of the Veteran's thoracolumbar spine and if so, to what degree. See April 2014 VA examination. Following each remand, a new VA examination occurred, all of which have frustrated the Board's attempts to obtain this retrospective opinion. In October 2019, the examiner once again accepted the Veteran's reports of flare-ups but stated there was insufficient evidence in the history and disability benefits questionnaire (DBQ) to provide a retrospective opinion. See October 2019 VA examination. In April 2021, the examiner also accepted the Veteran's reports of flare-ups, but citing the Veteran's tremendous job taking care of himself, further stated that a retrospective opinion would resort to mere speculation. See April 2021 VA examination. Finally, and most recently, in November 2021, the VA examiner stated that the April 2014 VA examination is consistent with the subjective and objective findings at the time. See November 2021 VA examination. Rather than provide a retrospective estimate on the functional limitations due to flare-ups in April 2014, this examiner disagreed with every prior examiner and several VA physicians by saying that the Veteran does not suffer from "true flare-ups." See id. The opinion did not explain what constitutes a "true flare-up." See id. There are several issues with the November 2021 VA examination. First, and most obvious, is that the examiner's opinion disagrees with every prior examiner, several VA physicians, and the Veteran's own lay accounts of his symptoms. Indeed, the Veteran has reported flare-ups consistently in his accounts of his symptoms dating back to 2007. See, e.g., October 2007 letter from the Veteran. His accounts have been accepted and relied upon by his physicians and other medical practitioners in order to provide treatment over the entire period at issue. See, e.g., November 2016 physician outpatient note. Moreover, the prior three examiners all concluded that the Veteran does suffer from flare-ups. See April 2014 VA examination; October 2019 VA examination; April 2021 VA examination. The Board recognizes that this does not necessarily mean the November 2021 examiner is incorrect, but without providing more insight on what constitutes a "true flare-up," the probative weight of the opinion is limited. Additionally, the Board may not rely on an opinion that disregards lay evidence that is potentially competent to support the presence of disability, even where the lay evidence is not corroborated by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). For this reason, a remand is necessary in order for the Board to obtain another opinion to assist in adjudicating the issue at hand. The second issue with the November 2021 VA examination is in a similar vein as the first. That examiner determined that the Veteran did not display objective signs of radiculopathy. See November 2021 VA examination. However, this is in direct contradiction to the April 2021 examiner, who provided a diagnosis of bilateral lower radiculopathy based upon objective and subjective evidence observed during that examination. See April 2021 VA examination results. In fact, subsequent to the April 2021 VA examination, the Veteran was granted entitlement to service connection for lower left extremity radiculopathy, femoral nerve, with an evaluation of 10 percent. See April 2021 rating decision. The April 2021 opinion echoes the findings of a November 2011 VA examination, which diagnosed the Veteran with mild bilateral lower radiculopathy. See November 2011 VA examination. Again, this does not mean the November 2021 VA examiner is necessarily incorrect, but without more explanation, the Board is left with two conflicting diagnoses. The third issue with the November 2021 examination is that it contains statements which are somewhat internally inconsistent. Specifically, the November 2021 examiner states that the April 2014 medical opinion is consistent with the subjective and objecting findings at the time. See November 2021 VA examination. However, the April 2014 medical opinion accepted the Veteran's reports of flare-ups, a contention the November 2021 VA examination rejects. See id.; April 2014 VA examination. Moreover, the November 2021 examination states that "[t]he Veteran's claim of subjective complaints are valid." See November 2021 VA examination. However, that same examination rejects the Veteran's subjective reports, well documented in his claims file, of flare-ups. See id. Once again, this does not mean that the November 2021 VA examiner is incorrect, but without more explanation, the Board cannot rely upon an opinion that appears to contradict itself. Accordingly, another opinion is required. The matters are REMANDED for the following action: 1. The Decision Review Operations Center (DROC) should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The DROC should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating any documents with the file, afford the Veteran a new VA examination of his chronic lumbar strain, if and when he can attend one. The claims file and a complete copy of this Remand should be reviewed and all appropriate testing should be conducted. (a.) The lumbar spine should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or is not medically appropriate in this case, he or she should clearly explain why that is so. (b.) The examiner is asked to express an opinion regarding whether pain, weakness, fatigability, or incoordination cause additional functional impairment of the lumbar spine on repeated use over time OR during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. (c.) If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional loss during such events based on the Veteran's description of their severity, frequency, duration, and/or functional loss manifestations. 3. If the Veteran is found to have additional functional impairment of the lumbar spine on repeated use over time or during flare-ups, the DROC should obtain a retrospective medical opinion regarding the functional limitations of the Veteran's chronic lumbar spine strain at the time of the April 2014 VA examination. (a.) The examiner should elicit relevant information as to the Veteran's flare-ups and repetitive use or ask him to describe the additional functional loss, if any, he suffered during flare-ups and repetitive use at the time of the April 2014 examination, and then estimate his functional loss based on all the evidence of record, including the Veteran's lay information. (b.) The examiner is instructed not to base the opinion on the preventative treatment measures used by the Veteran to treat his back condition. (c.) If the examiner cannot provide an opinion as to additional loss of motion on repeated use or during a flare-up without resorting to mere speculation, the examiner must make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (d.) The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.