Citation Nr: 22012706 Decision Date: 03/05/22 Archive Date: 03/05/22 DOCKET NO. 10-07 313 DATE: March 5, 2022 REMANDED From February 14, 2006, to September 19, 2016, an initial disability rating higher than 20 percent for herniated nucleus pulpous, left lumbar with chronic back strain, intervertebral disc syndrome (IVDS) and degenerative joint disease (DJD) is remanded. From September 20, 2016, a disability rating higher than 20 percent for herniated nucleus pulpous, left lumbar with chronic back strain, IVDS and DJD is remanded Prior to September 20, 2016, an initial disability rating higher than 10 percent for radiculopathy of the right lower extremity is remanded. Prior to September 20, 2016, an initial disability rating higher than 10 percent for radiculopathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 and August 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In March 2012, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who has since left the Board. In July 2013, that VLJ remanded the case for additional development. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision on that appeal. 38U.S.C. §7107(c); 38C.F.R. §20.707. The Veteran indicated that he wished to appear at a new hearing before a different VLJ. In March 2019, the Veteran testified at a videoconference hearing before the undersigned VLJ. Transcripts of both hearings have been associated with the claims file and the information provided in support of the claim from both videoconferences has been considered. In an August 2018 rating decision, the RO granted an increase to the Veteran's service-connected back disability from 10 percent to 20 percent, effective September 20, 2016. As this does not constitute a full grant, this issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In December 2019, the Board granted an initial 20 percent rating, but no higher, for the Veteran's lumbar disability from February 14, 2006 to September 20, 2016.The issue of whether a disability rating higher than 20 percent was warranted after September 2016 was remanded. Additionally, the Board denied initial disability ratings higher than 10 percent for right and left lower extremity radiculopathy. Subsequently, the Veteran appealed these issues to the United States Court of Appeals for Veterans Claims (Veterans Court). In an August 2020 Order granting the parties' Joint Motion for Remand (JMR), the Veterans Court vacated the Board's December 2019 decision denying initial ratings higher than 10 percent for his bilateral lower extremity radiculopathy and remanded the matters to the Board for action consistent with the JMR. 1. From February 14, 2006 to September 20, 2016, an initial disability rating higher than 20 percent for herniated nucleus pulpous, left lumbar with chronic back strain, IVDS and DJD is remanded. 2. From September 20, 2016, a disability rating higher than 20 percent for herniated nucleus pulpous, left lumbar with chronic back strain, IVDS and DJD is remanded. 3. Prior to September 20, 2016, an initial disability rating higher than 10percent for radiculopathy of the right lower extremity is remanded. 4. Prior to September 20, 2016, an initial disability rating higher than 10 percent for radiculopathy of the left lower extremity is remanded. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. First, remand is required to comply with the March 2021 remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The issues were remanded for retrospective opinions to determine the severity of the Veteran's back disability from February 2006 to September 2016, and also to determine the severity of the Veteran's bilateral lower extremity radiculopathy symptoms prior to September 20, 2016. A June 2021 addendum opinion was provided. The examiner did not address the severity of the Veteran's back disability or bilateral lower extremity radiculopathy prior to 2016. Notably, the examiner was asked to estimate loss in range of motion from 2006 to present. However, the VA examiner only addressed the 2016 VA examination. In an October 2021 statement, the Veteran pointed out the VA examiner failed to provide any retrospective opinions. Accordingly, remand is required for adequate opinions. Second, remand is required to obtain the VA examiner's qualifications. In a September 2021 statement, the Veteran's representative challenged the VA examiner's competency. The Veteran's representative noted the VA examiner was identified as a nurse practitioner without any indicated competence or expertise in neurology. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Board notes that the VA examiner's qualifications were not included in the claims file. See id. at 1308 ("Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist."). Accordingly, remand is required to obtain the examiner's qualifications or to provide a new VA examination from a provider whose qualifications will be submitted along with the report of examination findings. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Provide the Veteran and his representative with the June 2021 examiner's curriculum vitae and any other information about the examiner's qualifications, as requested by the Veteran and his representative. 4. If the AOJ is unable to provide the examiner's qualifications, schedule the Veteran for VA examinations to determine the current severity and manifestations of his service-connected back disability and lower extremity radiculopathy. The claims file must be reviewed by the examiner. The most up-to-date Disability Benefits Questionnaire(s) must be employed, and all opinions and conclusions must be supported by a rationale. Additionally, the examiner should provide "retrospective" medical opinions concerning the severity of the Veteran's back disability from February 14, 2006 to September 20, 2016, and the severity of his bilateral lower extremity radiculopathy prior to September 20, 2016. All pertinent symptoms and findings must be reported in detail. To comply with the legal criteria for orthopedic examination, the examiner must describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares ups or repetitive use, and if so, the examiner must estimate range of motion during flare ups or repetitive use. If the examination does not take place during a flare up or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flareups or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination instructions, the examiner must also address the following: The examiner is advised that the Board finds the Veteran has experienced flareups from 2006 to the present. The examiner MUST accept this finding. Therefore, the examiner MUST attempt to estimate the loss in range of motion, if any, for the back disability from 2006 to present. The Board recognizes that this is retrospective in nature and may seem to be "speculative" but that veterans' benefits law only requires a 50 percent certainty and, also by law, this information is essential to adequately rate the Veteran's disabilities. In opining, base your estimate on information obtained from relevant sources, including the lay statements the Veteran provides after he is asked to describe functional limitation. If you cannot opine without resorting to speculation, state whether that is because of a lack of knowledge among the medical community at large OR because you personally have insufficient information or expertise to provide the opinion. 5. If the AOJ is unable to provide the June 2021 examiner's qualifications, then an appropriate VA examiner should provide RETROSPECTIVE medical opinions concerning the severity of the Veteran's back disability from February 14, 2006 to September 20, 2016, and the severity of his bilateral lower extremity radiculopathy prior to September 20, 2016. The examiner must also address the following: The examiner is advised that the Board finds the Veteran has experienced flare-ups from 2006 to present. The examiner MUST accept this finding. Therefore, the examiner MUST attempt to estimate the loss in range of motion, if any, for the back disability from 2006 to present. The Board recognizes that this is retrospective in nature but that, BY LAW, this information is required to adequately rate the Veteran's disabilities. In opining, base your estimate on information procured from relevant sources, including the lay statements the Veteran provides after he is asked to describe functional limitation. If you cannot opine without resorting to speculation, state whether that is because of a lack of knowledge among the medical community at large OR because you personally have insufficient information or expertise to provide the opinion. 6. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.