Citation Nr: 25002012 Decision Date: 02/11/25 Archive Date: 02/11/25 DOCKET NO. 14-20 788 DATE: February 11, 2025 REMANDED Entitlement to an initial disability evaluation in excess of 10 percent for lumbar degenerative disc disease is remanded. Entitlement to a disability evaluation in excess of 20 percent from January 9, 2019, for lumbar degenerative disc disease is remanded. Entitlement to a separate evaluation for lumbar radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to March 1981. This matter comes before the Board an appeal from a May 2013 rating decision, which granted service connection for lumbar degenerative disc disease and assigned a 10 percent disability rating, effective March 29, 2011. In May 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board remanded the claim for increase for a lumbar spine disability in July 2018. In May 2022, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans' Claims (Court) which, in a September 2023 Memorandum Decision, vacated the Board's decision and remanded the matter to the Board. As explained below, the Board must now remand the claim for increase, as well as the claim for a separate evaluation for radiculopathy. 1. Entitlement to an initial disability evaluation in excess of 10 percent for lumbar degenerative disc disease is remanded. 2. Entitlement to a disability evaluation in excess of 20 percent from January 9, 2019, for lumbar degenerative disc disease is remanded. 3. Entitlement to a separate evaluation for lumbar radiculopathy is remanded. With regret for the further delay, the Board must remand the Veteran's claims for additional development. Regarding the claim for increase for lumbar degenerative disc disease, the Court has made explicit that the VA examination conducted in April 2013 was inadequate insofar as the examiner failed to opine adequately on the degree of expected functional loss during flareups. Further, the September 2020 VA examination does not apprise the Board of the impact of functional loss during the earlier portion of the appeal period, and as the Court made plain in its Memorandum Decision, the Board cannot adjudicate the latter portion of the appeal period, (from January 9, 2019,) without a clear view of the Veteran's disability picture prior to that date. As such, the matter must be remanded for a VA examination and expert medical opinion including a retrospective assessment of functional loss during the earlier portion of the appeal period, with an understanding that furnishing such an assessment may require a degree of speculation as well as reliance on the Veteran's lay account of the history and progression of his low back disability. Regarding radiculopathy, the examiner should specify the current nature and manifestations of the condition in accordance with VA rating criteria. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the claims file with any outstanding and relevant VA and/or private medical records. 2. Then, schedule the Veteran for a VA examination with a qualified clinician who has not previously participated in this matter to determine the current nature and severity of the Veteran's low back disability and associated radiculopathy, as well as a retrospective assessment of the nature and severity of the condition prior to January 9, 2019. The examiner should review the entire claims file, including a copy of this remand, prior to the examination, and should include a notation that such review has occurred in the examination report. The examiner is directed to relate all current symptomatology associated with the Veteran's low back disability and lumbar radiculopathy in accordance with VA rating criteria. Further, the examiner should relate all symptomatology associated with those conditions prior to January 9, 2019, to include a thorough assessment of functional loss during flareups and/or with repetitive use of the low back over time, in terms of lost range of motion if possible. It is understood that furnishing such retrospective assessments may require a degree of speculation. The examiner is directed to afford due consideration to the Veteran's lay statements regarding the history and progression of his low back disability in furnishing retrospective assessments. All opinions expressed must be supported by thorough rationale. 3. Review the examination report to ensure compliance with this remand's directives. Then, readjudicate the claims. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.