Citation Nr: 22019488 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 09-37 791 DATE: April 1, 2022 REMANDED The issue of a rating greater than 10 percent for a low back disorder from May 7, 2007 to June 5, 2009 is remanded. The issue of a rating greater than 20 percent for a low back disorder since June 5, 2009 is remanded. The issue of an initial rating greater than 10 percent for left lower extremity radiculopathy since September 2, 2009 is remanded. REASONS FOR REMAND The Veteran had active service from August 1979 to August 1982. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: This is a remand under Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Board of Veterans' Appeals (Board) denied the claims in January 2021 and the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In November 2021, the Court vacated the denials and remanded the claims for further development. The claims are remanded for additional development consistent with the Court's order. THE REMAND DIRECTIVES FOLLOW: 2. SCHEDULE EXAMINATION AND OBTAIN MEDICAL OPINIONS: Schedule an examination with the examiner who conducted the November 2019 VA examination (J.B., N.P.) to evaluate the severity of the Veteran's low back disorder, bilateral lower extremity radiculopathy, and functional loss during flare-ups. If that examiner is unavailable, schedule an examination with a qualified clinician. The examiner must give responsive, fully explained answers to the following: (a) Describe the Veteran's current functional loss during flare-ups in terms of additional range of motion (ROM) lost (in degrees, if possible). (b) Provide a retrospective opinion on the Veteran's functional loss during flares from May 7, 2007 to the present. In rendering the opinion, the examiner must review the VA examinations dated August 2007, June 2009, June 2014, and November 2019 (summarized below) and estimate what the Veteran's ROM would have been during flares at the time of each examination. (c) When evaluating radiculopathy as "mild," "moderate," "moderately severe," or "severe," please fully explain your assessment. Please state whether radiculopathy symptoms are sensory, motor, or both. (d) When evaluating radiculopathy, please explain the significance (if any) of a July 2016 MRI report that noted "severe left and moderately severe right neural foraminal stenosis" at L4-L5; and "severe left and moderately severe right neural foraminal stenosis" at L5-S1. Regardless of whether the Veteran is experiencing a flare during the examination, the examiner must base the opinion on the medical evidence of record and the Veteran's lay descriptions of the severity, frequency, and duration of his flares and functional loss he experiences. If the examiner cannot give any of the above opinions without speculating, he/she must state whether this is because of a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts or evidence are required), or that the examiner does not have the knowledge or training. If applicable, the examiner must explain why and what additional information would be needed to provide the requested opinion. Reiterating, if the examiner cannot estimate ROM during flare-ups without speculating, THE EXAMINER MUST GIVE A THOROUGH, MEDICALLY REASONED EXPLANATION FOR WHY THAT IS SO. IT IS NOT SUFFICIENT TO ONLY STATE THAT AN INABILITY TO PROVIDE AN OPINION IS DUE TO THE EVIDENCE OF RECORD OR THE EXAMINER'S MEDICAL KNOWLEDGE. The examiner must review the VA records, as found in CAPRI and any other electronic file, as well as any paper files that accompany this request. However, the Board provides the following summary of the Veteran's statements concerning flare-ups: At an August 2007 VA examination, the examiner noted the Veteran "gets flares when he bends over after he stands from [the] bent position. He will develop flares. It lasts for about ten minutes. He is not able to do any physical activity with the flares." At a June 2009 VA examination, the Veteran reported burning, aching, and sharp back pain that was exacerbated by physical activity. He reported difficulty bending but indicated his condition did not result in any incapacitation. At a June 2014 VA examination, the Veteran described his flare-ups as "burning in the low back, shocking pain above the waist and burning pain at waist and into the right buttock." He reported his back would sometimes "lock up" when transitioning from sitting to standing. At a November 2019 VA examination, the Veteran reported flare-ups that "occur 1-2 times per month caus[ing] pain and stiffness" that last "2-3 hours." However, the examiner opined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flareups. The examiner concluded that based on "the DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to flare ups." PLEASE NOTE THAT THE COURT FOUND THIS EXAMINATION INADEQUATE BECAUSE THE EXAMINER DID NOT EXPLAIN HER CONCLUSION THAT THERE WAS NO BASIS TO ESTIMATE FUNCTIONAL LOSS DURING FLARES, GIVEN THE VETERAN'S REPORTS OF PAIN AND STIFFNESS AT THE 2014 AND 2019 EXAMINATIONS. 2. The RO will then readjudicate the increased rating claims. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.