Citation Nr: 22014403 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 07-30 051 DATE: March 12, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent for intervertebral disc syndrome with degenerative disc disease of the lumbosacral spine with lumbar spinal stenosis status post laminectomy (a back condition) for the period from March 3, 2006 to October 13, 2011 is remanded. Entitlement to rating in excess of 10 percent a back condition for the period from June 1, 2012 to October 13, 2021 is remanded. Entitlement to rating in excess of 20 percent for a back condition since October 14, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision issued by the Department of Veterans Affairs (VA). The March 2014 rating decision assigned an initial rating of 10 percent for the Veteran's back condition from March 3, 2006. Subsequently, a November 2014 rating decision assigned a temporary evaluation of 100 percent from February 17, 2012 through May 31, 2012 based on back surgery requiring a period of convalescence. As the Veteran is in receipt of 100 percent rating based on back surgery requiring a period of convalescence from February 17, 2012 through May 31, 2012, this period is not part of the current appeal period. In June 2016 and July 2018, the Board remanded the claim. In September 2020, the Board determined: 1) entitlement to an initial rating in excess of 10 percent for a back condition from March 3, 2006 to October 13, 2011 was denied; 2) entitlement to a rating of 20 percent, but no higher, for a back condition from October 14, 2011 to February 16, 2012, was granted; and 3) entitlement to a rating in excess of 10 percent for a back condition from June 1, 2012 forward, was denied. The Veteran appealed the September 2020 Board decision to the Court of Appeals for Veterans Claims (CAVC), resulting in an April 2021 Joint Motion for Remand (JMR). The Veteran appealed only the denial of a rating in excess of 10 percent rating for the periods from March 3, 2006 to October 13, 2011 and from June 1, 2012 forward. The Veteran did not challenge the part of the Board decision that denied his claim of entitlement to a 20 percent rating for his back condition from October 14, 2011 to February 16, 2012. Thus, only the periods from March 3, 2006 to October 13, 2011 and from June 1, 2012 thereafter are in appellate status before the Board. Subsequently, this case was remanded by the Board in August 2021. In the April 2021 JMR the parties agreed that the February 2019 VA examination opinion was not compliant with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); which requires that if an examiner cannot make an estimation without resorting to speculation, "it must be apparent that the inability to provide an opinion without resorting to speculation 'reflect[s] the limitation of knowledge in the medical community at large' and not a limitationbased on lack of expertise, insufficient information, or unprocured testingof the individual examiner." Further, the April 2021 JMR noted that, at the Veteran's September 2006 VA examination, he reported flare-ups of his back condition. The examiner found that Veteran had severe flare-ups every one to two months that would last one to two days. However, the parties agreed that the examiner did not address whether there was additional functional loss during flare-ups, and the Board failed to address whether this examination was adequate for rating purposes considering Sharp. The claims were subsequently remanded by the Board in August 2021 in order to obtain a VA examination to address these deficiencies. Pursuant to the August 2021 Board remand, a VA examination was conducted in October 2021 and addendum medical opinions were provided in November 2021 and January 2022. The October 2021 VA examination addressed the Veteran's range of motion, to include an estimate during flareups at that time. The November 2021 addendum opinion determined that the Veteran had additional functional loss during flareups and repeated use over time. The January 2022 addendum medical opinion was obtained to address the Veteran's reported flareups at his September 2006 VA examination. This addendum opinion stated, "The original examiner noted the following ROM for flare ups which are consistent with the statements and diagnoses rendered to include- Degenerative disc disease other than intervertebral disc syndrome (IVDS), Intervertebral disc syndrome, Spinal stenosis, s/p laminectomy, and left lower radiculopathy." However, the subsequent ROM measurements listed in the January 2022 addendum opinion are not the ROM findings from the September 2006 VA examination. The September 2006 VA examiner did not estimate ROM during flareups. Further, the January 2022 addendum opinion stated, "There would be expected variability in the ROM with varying degrees of severity of a flare and the rendered values fall within reasonable expected losses." The Board finds January 2022 addendum medical opinion is inadequate for rating purposes as it does not provide an estimate of the Veteran's ROM during flareups in degrees from March 3, 2006 to October 13, 2011. The Board finds that an addendum opinion is warranted to provide a retrospective medical opinion estimating the Veteran's ROM during flareups in degrees from March 3, 2006 to October 13, 2011. The examiner must address that Veteran's contentions at the September 2006 VA examination that he suffered from severe flare-ups every one to two months with a duration of one to two days; a precipitating factor is increased activity; alleviating factors are Tylenol and rest; and that his impression of the extent of additional limitation of motion or other functional impairments during flare-ups was that he "would not be as mobile." See September 2006 VA examination report. The examiner must also address the contentions of the Veteran's representative in his January 2022 statement; specifically, that a higher rating was warranted from March 2006 to February 2012 as flareups occurred every one to two months and rendered him "completely immobile" for one to two days; and that his back pain was so severe that he underwent a back laminectomy. See January 2022 statement. Further, in Chavis v. McDonough, 34 Vet. App. 1 (2021), CAVC found that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, the VA examiner must comment on whether the Veteran's estimated functional loss during flareups, is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. In addition, the Board notes that VA amended some of its rating criteria for musculoskeletal disabilities, including the criteria for the back under 38 C.F.R. § 4.71a, DCs 5242 and 5243, effective February 7, 2021. See 85 Fed. Reg. 76453 (February 7, 2021) (codified at 38 C.F.R. § 4.71a). The RO must provide the Veteran with notice of the applicable new musculoskeletal rating criteria and adjudicate the claim applying the new criteria. When rating the Veteran's disability, the RO should be mindful of the fact that it may only apply the new rating criteria for from the effective date of the change in the Diagnostic Code - February 7, 2021. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The matters are REMANDED for the following action: Send the Veteran's claims file to an appropriate VA clinician for the purpose of obtaining a retrospective opinion regarding ROM of the Veteran's back from March 3, 2006 to October 13, 2011. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by the clinician. If the clinician determines that a physical examination is necessary, one should be provided. Thereafter, the clinician must address the following: (a.) At the September 2006 VA examination, the examiner did not estimate functional limitations due to flare-ups in terms of additional degrees of limitation of motion. The examiner must retrospectively estimate functional limitations due to flare-ups in terms of additional degrees of limitation at the time of the September 2006 VA examination. The examiner should specifically describe the severity, frequency, and duration of any flare-ups; and name the precipitating and alleviating factors. (b.) Please comment on whether the Veteran's estimated functional loss during flareups in September 2006 was consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. In providing the requested opinions, the examiner must acknowledge and address the Veteran's contentions at the September 2006 VA examination that he suffered from severe flare-ups every one to two months with a duration of one to two days; a precipitating factor is increased activity; alleviating factors are Tylenol and rest; and that his impression of the extent of additional limitation of motion or other functional impairments during flare-ups was that he "would not be as mobile." See September 2006 VA examination report. The examiner must also acknowledge and address the contentions of the Veteran's representative in his January 2022 statement; specifically, that a higher rating was warranted from March 2006 to February 2012 as flareups occurred every one to two months and rendered him "completely immobile" for one to two days; and that his back pain was so severe that he underwent a back laminectomy. See January 2022 statement. (Continued on the next page) If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide the requested opinions without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. M. Coyne Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.