Citation Nr: 22013953 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-34 059 DATE: March 11, 2022 REMANDED Entitlement to a rating in excess of 10 percent for a back disability prior to August 13, 2019, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from May 1988 to July 1990. This matter comes to the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2021 Board decision, the back disability increased rating claim was denied. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a Joint Motion for Partial Remand (JMPR), in November 2021 vacated the Board's prior denial and remanded the claim consistent with the terms of the JMPR. The Court did not disturb the grant of a total disability rating based on individual unemployability and denials of increased ratings claims for bilateral lower extremity radiculopathy and a right hand injury included in the February 2021 decision. Entitlement to a rating in excess of 10 percent for a back disability prior to August 13, 2019, and in excess of 20 percent thereafter is remanded. Service connection for the Veteran's back disability was granted effective July 31, 1990. He filed a claim for an increased rating on October 8, 2010. The only VA examination regarding his back disability conducted during the appeal period occurred in August 2019. As noted in the JMPR, the examiner assessed the current severity of the disability but did not provide any comment regarding the severity of the disability during the rest of the appeal period. The Board finds that in order to comply with the terms of the JMPR, a new VA examination is needed which provides a retrospective opinion regarding the extent and severity of the back disability throughout the entire appeal period, based on a review of the relevant medical records in the claims file and an interview with the Veteran. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the extent and severity of his service-connected back disability throughout the entire appeal period, stemming from a year prior to the October 8, 2010, claim for increase. The claims folder should be made available to and reviewed by the examiner. All indicated tests and studies should be performed, including range of motion studies in degrees, and the results reported. The examiner is asked to: (a.) Evaluate the current severity of the Veteran's back disability, to include range of motion testing for the spine on both active and passive motion and in weight-bearing and nonweight-bearing; additional functional impairment on repeated use or during flare-ups; and any additional functional limitations. (b.) Provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the Veteran's back disability since October 8, 2009. The examiner should also provide a retrospective opinion as to whether the Veteran experienced any incapacitating episodes of intervertebral disc syndrome since October 8, 2009. The examiner should specifically indicate whether any reports of movement limitations represent the extent of functional limitation due to pain. The examiner should also address, to the extent possible, if the Veteran experienced muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour prior to August 13, 2019. (c.) In addition to the foregoing, from a review of the record (including private, state, and VA treatment records) and eliciting information from the Veteran, the examiner is asked to provide a retrospective opinion on the extent of the Veteran's symptoms and whether there would have been additional functional impairment since October 8, 2009, with repeated use and during flare-ups, i.e., frequency, duration, characteristics, severity, or functional loss. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, to the extent possible. (d.) The examiner's opinions should reflect consideration of the Veteran's reports as to his history and symptomatology. All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. If the examiner determines that s/he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 2. Ensure the examination report is associated with the claims file. After completing the above and any additionally indicated development, readjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.