Citation Nr: 22013769 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 10-47 975 DATE: March 10, 2022 REMANDED Entitlement to a rating in excess of 20 percent for the appeal period prior to July 29, 2015 for a low back strain is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to January 1997. This matter comes before the Board of Veteran's Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2017, September 2020, and January 2021. In the January 2021 decision, the Board denied the instant claim. The Veteran subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a November 2021 Amended Joint Motion for Remand (JMR), the Court vacated the Board's January 2021 decision and remanded the claims to the Board for further adjudication. 1. Entitlement to rating in excess of 20 percent for the appeal period prior to July 29, 2015, for a low back strain is remanded. The parties to the November 2021 JMR agreed that the Board erred by relying on inadequate medical evidence when denying the Veteran's increased rating claim in excess of 20 percent for a low back strain. Specifically, the JMR found that the September 2019 VA examination did not sufficiently inform the Board on the Veteran's functional loss during flare-ups. The JMR relied on the holding in Sharp v. Shulkin that a VA medical opinion is inadequate where the examiner states that they cannot provide an opinion without resorting to speculation because they are unable to perform an examination during an ongoing flare-up. Such an opinion contravenes VA guidance. Rather, the examiner is required to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and the extent of functional impairment of flares from the Veterans themselves. After soliciting such information, the examiner must estimate the Veteran's functional loss due to flares based on all the evidence of record including the Veteran's lay information or explain why they could not do so. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, on remand, the Board is directed to obtain an examination consistent with the guidance provided in Sharp in order to sufficiently inform the ultimate question of Veteran's functional loss or explain the reason for the inability to do so. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (if an examiner is unable to render a definitive opinion on an issue, he or she must explain the reason for that inability); see also Barr v. Nicholson, 21 Vet. App. at 311." The VA examination conducted on remand should address the functional limitations associated with a flare-up of the Veteran's low back strain. Thus, on remand, a retrospective medical opinion on his low back strain for the appeal period is necessary. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). Accordingly, the Board remands this matter so that such an examination and opinion can be provided. The matter is REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the nature and severity of his low back strain. The examiner should offer a retrospective opinion as to all measurements required to evaluate the degree of disability for low back strain for the period on appeal (i.e., October 29, 2008 to July 29, 2015). The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran's documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner shall inquire as to periods of flare-ups and note the frequency and duration of any such flare-ups for the period on appeal (i.e., October 29, 2008 to July 29, 2015). Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per Veteran, to what extent, if any, such flare-ups affect functional impairment. The examiner should also review the May 2009 VA examinations and provide a retrospective opinion as to the Veteran's flare-ups considering Sharp. If unable to provide this retrospective testing, the examiner should state why and provide a reasoned explanation for the determination. (Continued on the next page) The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.