Citation Nr: 22015630 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 14-40 142 DATE: March 18, 2022 REMANDED The issue of entitlement to a disability rating greater than 10 percent for a lumbar spine disability prior to December 19, 2013, is remanded for further development. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 2007 to July 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for a lumbar spine disability and assigned an initial 10 percent rating, effective July 27, 2011. The Veteran disagreed with this initial rating and filed a notice of disagreement (NOD) in April 2013. Thereafter, VA issued a statement of the case (SOC) in October 2014 and the Veteran perfected his appeal in November 2014. The Veteran's case was then transferred to the Board, and, in May 2018, it remanded the lumbar spine increased rating issue for further development. The Board remanded the issue once again in June 2020. Subsequently, in October 2020, a VA RO issued a rating decision that increased the Veteran's lumbar spine disability rating to 40 percent, effective September 29, 2020. But, as this increase did not represent a total grant of the benefit sought on appeal, the Veteran's initial increased rating claim remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Then, in February 2021, the Board issued a decision granting an increased rating of 20 percent from December 19, 2013, to September 29, 2020. However, the Board also denied (1) a rating greater than 10 percent prior to December 19, 2013, and (2) a rating greater than 40 percent from September 29, 2020, onward. The Veteran appealed the February 2021 Board decision to the Court of Appeals for Veterans Claims (Court). In November 2021, the Veteran and the Secretary filed a Joint Motion for Partial Remand (JMPR) and requested that the Court vacate and remand the Board's decision with respect to its denial of a rating greater than 10 percent prior to December 19, 2013, only. The Court granted the parties' motion later in November 2021, and the case has now returned to the Board. Entitlement to a Disability Rating Greater than 10 Percent for a Lumbar Spine Disability Prior to December 19, 2013 In their November 2021 JMPR, the parties agreed that the February 2021 Board erred by relying in part on a June 2012 VA examination report in denying a disability rating greater than 10 percent for the lumbar spine prior to December 19, 2013. Specifically, the parties indicated that the June 2012 VA examiner noted that the Veteran experienced flare-ups. But the examiner did not attempt to elicit information from the Veteran regarding the frequency, duration, characteristics, severity, or function loss experienced during flare-ups, as required by the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Lastly, the parties found that, on remand, the Board was to determine whether a retrospective opinion was needed to assess the Veteran's disability level prior to December 19, 2013, in light of the inadequacies of the June 2012 VA examination report. In addressing the November 2021 JMPR, the Board finds that remand for a retrospective opinion is necessary as the record prior to December 19, 2013, is currently inadequate to adjudicate the Veteran's claim on its merits. In reaching this determination, the Board agrees with the parties' findings concerning the June 2012 VA examination report and its conflict with the Court's holding in Sharp. Additionally, the Board notes that, in March 2014, a VA addendum medical opinion was associated with the Veteran's claims file. This opinion was elicited to attempt to obtain information regarding the degree of functional loss the Veteran experienced during flare-ups. The March 2014 VA clinician responded that such an opinion was not feasible as the Veteran "was not examined under the conditions specified in the opinion request." The Board finds that the March 2014 addendum to also be inadequate as the Court's holding in Sharp indicated that flare-up estimates may be based on other relevant sources in a veteran's claims fileincluding lay statements and treatment recordsand are not solely dependent upon whether a veteran was experiencing a flare at the time of the examination. 29 Vet. App. at 34-35. Thus, remand for a retrospective opinion is warranted in the instant case. The matter is REMANDED for the following action: Forward the Veteran's claims file to an appropriate VA clinician to provide a retrospective opinion concerning the nature and severity of the Veteran's lumbar spine disability from July 27, 2011, to December 19, 2013. The clinician should review the Veteran's claims file, including this Remand and the parties' November 2021 JMPR, in conjunction with providing the opinion. The clinician should then address the following: Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during prior VA thoracolumbar spine examinations, please describe the additional functional loss the Veteran experienced during his reported flare-ups prior to December 19, 2013. In providing this description, please identify the following information concerning the Veteran's flare-ups: (a.) their frequency; (b.) their duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the Veteran's reports of flare-ups prior to December 19, 2013, please state whether it is at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that, during a flare-up: (a.) forward flexion of the thoracolumbar spine was limited between 30 to 60 degrees; (b.) forward flexion of the thoracolumbar spine was limited to 30 degrees or less; and (c.) the combined range of motion of the thoracolumbar spine was limited to no more than 120 degrees. In providing a response to the request immediately above, please do not consider any ameliorative effects of any medication the Veteran was taking prior to December 19, 2013. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.