Citation Nr: 22032167 Decision Date: 06/01/22 Archive Date: 06/01/22 DOCKET NO. 12-14 471A DATE: June 1, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for lumbosacral strain prior to May 19, 2016, is remanded. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain, from May 19, 2016, to November 24, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2006 to August 2007 and had an earlier period of active duty for training from June 1994 to August 1994. These matters are on appeal of a March 2010 rating decision. In March 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The Board remanded the appeal for further development in May 2019. In February 2021, the Board denied the Veteran's claims for increased disability ratings for lumbosacral strain, for the time periods prior to May 19, 2016, and from May 19, 2016, to November 24, 2019, while granting an increased 40 percent rating for the disability for the period since November 25, 2019. The Board further remanded the claims for service connection for vision problems, joint pain in the bilateral wrists and bilateral hands, and a stomach condition for additional development. The Veteran appealed the February 2021 Board decision to the United States Court of Appeals for Veterans Claims (Court) to the extent that it denied increased disability ratings for the periods prior to May 19, 2016, and from May 19, 2016, to November 24, 2019, for the Veteran's service-connected lumbosacral strain. In January 2022, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran's representative and the VA General Counsel. The parties to the January 2022 JMPR agreed that remand of the identified issues was necessary in this case because the Board erred when it did not ensure that the February 2010, May 2016, and November 2019 VA examinations were adequate for rating purposes. The February 2010 VA examiner noted the Veteran had pain with range of motion testing but did not address whether such pain resulted in additional limitation of motion. Likewise, the February 2010 VA examiner acknowledged pain with repetitive range of motion testing, and that the Veteran had "severe" flare-ups of his symptoms but did not provide an opinion as to whether his pain and flare-ups could significantly limit functional ability with repeated use or during flare-ups. The May 2016 VA examiner stated that he could not say whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time without speculation. However, he did not indicate whether this was due to a lack of knowledge in the medical community at large or to insufficient knowledge of the specific examiner. The November 2019 VA examiner found that the Veteran's pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time and with flare ups, but the examiner did not adequately explain why he was unable to describe the limitations in terms of range of motion. In order to ensure compliance with the January 2022 JMPR, the Board finds that remand is required to obtain a supplemental medical opinion to help the Board assess the severity and manifestations of the Veteran's lumbosacral strain for the periods prior to May 19, 2016, and from May 19, 2016, to November 24, 2019. The matters are REMANDED for the following action: Forward the Veteran's claims file to an appropriate clinician to obtain a retrospective medical opinion regarding the severity and manifestations of the Veteran's lumbosacral strain prior to May 19, 2016, and from May 19, 2016, to November 24, 2019. The clinician must review the entire claims file, to include a copy of this remand. If deemed necessary, another examination should be conducted, including via telehealth interview of the Veteran. To the extent feasible, the retrospective medical opinion should include an assessment of any additional functional loss due to pain observed with repetitive motion testing during the prior examinations in February 2010, May 2016, and November 2019. The examiner should also assess the likelihood and degree that pain, weakness, fatigability, or incoordination caused additional functional impairment during flare-ups based on the Veteran's descriptions of such at the time of his February 2010, May 2016, and November 2019 examinations. Any additional functional impairment should be assessed in terms of the degree of additional range of motion loss, if possible. The clinician should provide the estimates, if at all possible, of the additional impairment due to repetitive motion pain and flare-ups based on other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to 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 are required), or the examiner (does not have the knowledge or training). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.