Citation Nr: 1316766 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-25 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased rating for a lower back disability, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to December 1982 and from May 1997 to January 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In that decision, the RO continued a prior 20 percent rating for a lower back disability. A TDIU was inferred and is part and parcel to the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In May 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In December 2011, this case was remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (the Court) held that: all VA examinations must comply with 38 C.F.R. § 4.40 regarding functional loss; the examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare ups or when the joint is used repeatedly over a period of time; and if possible, functional loss should be portrayed in degree of additional range of motion loss due to pain on use or during flare ups. In other words, there should be an attempt to quantify "functional loss" into degrees of ranges of motion lost for flare ups and any other factors of impairment. Here, at his April 2012 VA examination, the Veteran reported flare ups of low back pain. Consequently, the examiner needs to state what additional range of motion lost is due to such flare ups. If this is not possible, then the examiner must state that this information could not be provided without resorting to speculation and further explain why the information could not be provided. Additionally, under the "Functional loss and additional limitation in range of motion" section (Question 6.b-c.), the examiner reported the Veteran had: less movement than normal, pain on movement, instability of station and disturbance of locomotion. With the exception of "less movement than normal" and "pain on movement," which were already addressed elsewhere in the report, the examiner must express the additional range of motion lost for each of the other factors (here, instability of station and disturbance of locomotion). If this cannot be accomplished, the examiner needs to state this information could not be provided without resorting to speculation and explain why the information could not be provided. Regarding the claim for TDIU, the Veteran reported on his January 2012 TDIU application that he was working at two jobs; at his own commercial cleaning company and at a manufacturing business. His income at that time was well above the poverty level. At the April 2012 VA examination (and in other VA records) the Veteran only reported working at his self-employed cleaning business. On remand, the Veteran should be informed that if there have been any changes to his reported earnings level or to his employment he should inform VA as such information is pertinent to the issue of the marginal employment aspect of the claim of TDIU. See 38 C.F.R. § 4.16(a) (2012). A Board remand imposes upon VA's Secretary a duty to ensure compliance with the terms of the remand. When the AMC fails to comply, the Board must return the claims file for completion of previously requested action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran send updated employment information if it is different from what he reported in January 2012. 2. Associate updated VA treatment records with file. 3. After completing the above development, return the file to the April 2012 VA examiner and request that an answer to the following questions be provided. * Is there any additional range of motion lost due to flare ups? * Is there any additional range of motion lost due to instability of station? * Is there any additional range of motion lost due to disturbance of locomotion? If this information cannot be provided without resorting to speculation, the examiner should state this fact and also give a reason why such information would be speculative. The claims folder, and any relevant records in Virtual VA, should be made available for the examiner to review in conjunction with answering these questions. If deemed necessary or if the April 2012 VA examiner is unavailable, the Veteran should be scheduled for a VA examination and the above questions should be answered. Any new examiner should review the claims folder, including relevant records in Virtual VA, and report whether there are additional ranges of motion lost due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. If the examiner is unable to answer these questions, reasons for this inability should be provided. 4. Readjudicate the claim of service connection for an increased rating for a low back disability and entitlement to a TDIU. If the decision remains in any way adverse to the Veteran, provide him with a supplemental statement of the case (SSOC). The SSOC should reflect that all service treatment records have been reviewed. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).