Entitlement to an initial rating in excess of 20 percent for lumbar strain with intervertebral disc syndrome (IVDS) for the period prior to September 17, 2013, is remanded.

Citation Nr: 26001378 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 16-19 577 DATE: January 30, 2026 REMANDED Entitlement to an initial rating in excess of 20 percent for lumbar strain with intervertebral disc syndrome (IVDS) for the period prior to September 17, 2013, is remanded. Entitlement to a rating in excess of 40 percent for lumbar strain with IVDS for the period from September 17, 2013, is remanded. REASONS FOR REMAND The Veteran had active service from June 1985 to March 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in April 2013. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in June 2019. A copy of the hearing transcript has been reviewed and associated with the claims file. Following a November 2019 remand, the Board issued a decision in December 2020 in which it granted an initial rating of 20 percent for the Veteran's back disability prior to September 17, 2013; granted a 40 percent rating for his back disability from that date until December 2, 2019; and denied a rating in excess of 20 percent thereafter. The Veteran appealed the December 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2021, the Court granted a joint motion for partial remand submitted by the parties, vacating the Board's denials of higher ratings for the Veteran's lumbar spine disability and remanding the matters to the Board. These matters were again remanded by the Board for development in January, April, and December 2022. In a July 2023 decision, the Board denied an initial rating in excess of 20 percent for the Veteran's back disability prior to September 17, 2013; granted a 40 percent rating for the period from September 17, 2013, to December 2, 2019; and denied a rating in excess of 40 percent thereafter. The Veteran appealed the July 2023 decision to the Court. In March 2024, the Court granted a joint motion for remand, vacating the Board's denial of increased ratings for the Veteran's back disability and remanding the matters to the Board. The Board again remanded these issues for development in July 2024 and April 2025. 1. Entitlement to an initial rating in excess of 20 percent for lumbar strain with intervertebral disc syndrome (IVDS) for the period prior to September 17, 2013, is remanded. 2. Entitlement to a rating in excess of 40 percent for lumbar strain with IVDS for the period from September 17, 2013, is remanded. A remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure substantial compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's April 2025 remand directed the RO to obtain the Veteran's updated VA treatment records, obtain retrospective medical opinions regarding passive and weight-bearing range of motion at past VA examinations, and provide the Veteran with information regarding the qualifications of the examiner who conducted a VA examination in August 2024. Unfortunately, the RO has not substantially complied with the latter two directives. First, the Board notes that the RO has made no documented attempt to respond to the Veteran's request for information regarding the August 2024 examiner's qualifications. With respect to the requested medical opinions, a VA addendum medical opinion was issued in April 2025, wherein the examiner indicated that it was not possible to respond to the provided questions without resorting to speculation due to a lack of general medical knowledge because the examination tests were not included in the available records and the examinations are as many as 13 years old. Another addendum medical opinion was issued in July 2025, with the examiner adding that it would also be purely speculative to assess whether the Veteran had favorable or unfavorable ankylosis at the prior examinations, but he did not indicate whether such was due to limitations in his own knowledge, the medical community at large, or the record. Based on the July 2025 medical opinion, the RO determined that a new VA examination would be necessary to obtain the requested information regarding ankylosis. The Veteran underwent a VA back examination in July 2025. However, instead of answering the Board's questions regarding range of motion testing and prior examinations, the examiner responded that, "Medical records reviewed do not show lumbar pain in service between 1985 and 1990, therefore [the Board's] questions are not relevant." The Board finds that the July 2025 addendum medical opinion is not in substantial compliance with the Board's April 2025 remand directives. The examiner stated that it would be purely speculative to assess whether the Veteran exhibited ankylosis (or its functional equivalent) at the prior VA examinations. However, unlike in the April 2025 opinion, he did not indicate why this was so. This distinction is essential, as it must be clear that an examiner has considered all procurable and assembled data, and the inability to provide such an opinion must be predicated on a limitation of knowledge in the medical community at large. Jones v. Shinseki, 23 Vet App. 382, 390 (2010); see also Sharp v. Shulkin, 29 Vet. App. 26, 32-33 (2017). Therefore, the July 2025 medical opinion addressing ankylosis does not substantially comply with the April 2025 remand directives. The Board also finds that the July 2025 examiner's response to the Board's questions is not in substantial compliance with the April 2025 remand directives. Based on the response, it appears that the examiner believed that a medical opinion relating to service connection was requested. However, the issue on appeal is an increased rating and the questions are undoubtedly relevant to the issue at hand. Accordingly, the examiner's response is not in substantial compliance with the April 2025 remand directives, and a remand is necessary to obtain a medical opinion in compliance with the Board's remand directives. The matters are REMANDED for the following actions: 1. Provide the Veteran and his representative with a copy of the curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted) regarding the examiner's qualifications, and VA letters of engagement, if any, with examination instructions, of the examiner conducted the August 2024 VA examination. This information is to be associated with the Veteran's claims file. The RO should document all development with respect to this directive in the claims file and notify the Veteran and his representative of all steps taken and outcomes for this request. 2. Obtain an addendum medical opinion from the examiner who conducted the July 2025 VA back examination or, if that examiner is unavailable then another similarly qualified examiner may respond instead. The entire claims file, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner should respond to the following: (a.) At the time of the December 2012 VA examination, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that, during passive motion and/or weight-bearing ROM testing, the Veteran would have had: (a) forward flexion of the thoracolumbar spine 30 degrees or less, (b) favorable ankylosis (to include the functional equivalent of ankylosis) of the entire thoracolumbar spine, (c) unfavorable ankylosis (to include the functional equivalent of ankylosis) of the entire thoracolumbar spine, or (d) unfavorable ankylosis (to include the functional equivalent of ankylosis) of the entire spine? Please explain. (b.) At the time of the December 2019 VA examination, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that, during passive motion and/or weight-bearing ROM testing, the Veteran would have had: (a) forward flexion of the thoracolumbar spine 30 degrees or less, (b) unfavorable ankylosis (to include the functional equivalent of ankylosis) of the entire thoracolumbar spine, or (b) unfavorable ankylosis (to include the functional equivalent of ankylosis) of the entire spine? Please explain. (c.) At the time of the August 2024 VA examination, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that, during passive motion testing, the Veteran would have had: (a) forward flexion of the thoracolumbar spine 30 degrees or less, (b) unfavorable ankylosis (to include the functional equivalent of ankylosis) of the entire thoracolumbar spine, or (c) unfavorable ankylosis (to include the functional equivalent of ankylosis) of the entire spine? Please explain. (Continued on the next page) ? The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the?record (additional facts are required), or the examiner does not have the knowledge or training.?As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.