Citation Nr: 22015579
Decision Date: 03/18/22	Archive Date: 03/18/22

DOCKET NO. 15-12 067
DATE: March 18, 2022

REMANDED

Entitlement to a rating in excess of 10 percent for lumbar spine disability prior to December 23, 2017 is remanded.

Entitlement to a rating in excess of 20 percent for lumbar spine disability from December 23, 2017 through February 28, 2021 is remanded.

Entitlement to total disability for individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from September 1986 to April 2011.  

The Board of Veterans' Appeals (Board) remanded these matters in September 2021 to obtain a retrospective medical opinion for the Veteran's lumbar spine and to adjudicate the Veteran's claim for TDIU.  However, there was not substantial compliance with the portion of the remand pertaining to the claim for increased ratings for a lumbar spine disability prior to March 1, 2021.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999).  Specifically, the December 2021 VA examiner provided an evaluation on the current severity of the Veteran's lumbar spine disorder and did not attempt to estimate the severity of the Veteran's lumbar spine symptoms prior to March 1, 2021.  Unfortunately, an additional remand to address that matter is necessary. 

1. Entitlement to a rating in excess of 10 percent for lumbar spine disability prior to December 23, 2017 is remanded.

2. Entitlement to a rating in excess of 20 percent for lumbar spine disability from December 23, 2017 through February 28, 2021 is remanded.

While the Board regrets further delay, a remand is necessary to obtain an addendum medical opinion.

As noted in the September 2021 Board remand, the VA examinations prior to March 2021 did not provide adequate assessment of the Veteran's lumbar range of motion during flare-ups or after repeated use over time, as the examiners did not attempt to estimate additional loss of functioning in terms of degrees of range of motion during these periods.  

As a result, the September 2021 Board remand instructed the Regional Office (RO) to obtain a retrospective evaluation regarding the Veteran's lumbar spine disability prior to March 1, 2021.  The Board noted that the examiner should review the July 2011 and December 2017 VA examinations and ongoing treatment records and provide an estimated loss of ranges of motion during flare-ups or after repeated use over time.  The Board also stated that the Veteran should be interview by the examiner if the examiner determines that is necessary to estimate additional loss of range of motion during flare-ups or after repeated use over time. 

However, the December 2021 VA examination only evaluated the Veteran's current symptoms and severity of his lumbar spine disability, and no retrospective opinions on the Veteran's lumbar spine range of motion during flare-ups or after repetitive use over time prior to March 1, 2021 were given.  As such, a remand is necessary.

3. Entitlement to TDIU is remanded.

As discussed in the September 2021 remand, the Veteran alleges that he is unable to work due to his service-connected disabilities.  As a decision on the remanded issue of increased ratings prior to March 1, 2021 for a lumbar spine disability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined.  A remand for the claim for entitlement to a TDIU is required. 

The matters are REMANDED for the following action:

1. Schedule a retrospective evaluation regarding the Veteran's lumbar spine disability prior to March 1, 2021.  The examiner should review the July 2011 and December 2017 VA examinations, ongoing treatment records, and the lay statements and provide estimated loss of range of motion during flare-ups and after repeated use over time based on the initial ranges of motion shown in those examinations (and any other applicable records).  

If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repeated use over time without resorting to mere speculation, a best approximation will be sufficient.  

The examiner should contact the Veteran to interview him regarding his symptoms prior to March 1, 2021 if deemed necessary by the examiner.  

2. After the above has been completed, readjudicate the Veteran's TDIU claim.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Veltri, Associate Counsel