Citation Nr: 23018802 Decision Date: 03/27/23 Archive Date: 03/27/23 DOCKET NO. 19-18 770A DATE: March 27, 2023 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1972 to June 1974. This appeal to the Board of Veterans' Appeals (Board) is from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter has a lengthy procedural history. Most recently, the Board remanded these claims for additional development in August 2022. Unfortunately, the issues must again be remanded as there has not been substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy 3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy This issue was remanded to afford the Veteran a VA examination to determine the current level of severity of his lumbar spine disability and bilateral lower extremity radiculopathies. In pertinent part, the remand directives instructed the examiner to provide a retrospective opinion concerning the functional loss for the back from 2015. Regarding the retrospective opinion, the examiner was directed to (1) answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime or during flare-ups; (2) assess additional functional impairment in terms of the degree of additional range of motion lost, if possible, and; (3) ask the Veteran to give a retrospective lay description of such characteristics (i.e., lay descriptions of repeated use or flare-ups' severity, frequency, duration, and/or functional loss manifestations) and consider his response in formulating the opinion. The Veteran was afforded a VA back (thoracolumbar spine) conditions examination in December 2022. Regarding the retrospective opinion, the examiner determined that there was functional loss for the back due to pain and lack of endurance, but they were "unable to do a retrospective [range of motion] since it would be estimated on mere speculation." In February 2023, an addendum was provided, as the December 2022 examiner failed to provide an explanation for why they could not provide a retrospective opinion; however, the examiner again failed to explain why a retrospective opinion could not be provided, but simply reported a history of the Veteran's exertional levels and symptoms. The examiner also did not discuss the medical evidence in the Veteran's file or what information would be needed to provide the requested retrospective opinion. Further, it does not appear that the examiner asked the Veteran for a retrospective lay statement regarding flare-ups and functional loss/impairment in 2015. Thus, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall, 11 Vet. App. at 271. As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. An addendum opinion should be obtained. The above development will produce additional evidence relevant to the radiculopathy ratings. They are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Forward the claims file and a copy of this remand to an examiner for completion of an addendum opinion for the Veteran's service-connected lumbar spine disability. If the examiner determines that another in-person examination is required to provide the below-requested information, then such an examination should be scheduled. Based on review of the record, the VA examiner should provide a retrospective opinion considering the Veteran's functional impairment back to 2015.In providing the opinion, the examiner must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime or during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range of motion lost, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment (expressed in terms of additional range of motion lost) based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations. This is especially necessary for the retrospective opinion. To be clear, for that opinion, the Veteran should be asked to give a retrospective lay description of such characteristics and the examiner should consider his response in formulating the opinion. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitationwhether based on lack of expertise, insufficient information, or unprocured testingof the individual examiner. A complete rationale must be provided for all opinions expressed. Paulette Vance Burton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., Associate 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.