Citation Nr: 1802701 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-05 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for right central and posterolateral T6-T7 disc herniation and left central T10-T11 disc herniation (thoracic spine disability). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 5, 2017. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active service from August 1993 to January 1994 and from July 2005 to September 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran testified at a Board hearing before the undersigned regarding his claims for a higher rating for his thoracic spine disability and entitlement to a TDIU. The Board previously remanded the appeal. REMAND As to the claim of a higher rating for thoracic spine disability, a recent examination endeavored to comply with the directives of Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016), in that the examiner indicated that the Veteran's range of motion in all directions including flexion resulted in pain. However, the examiner did not then specify to what degree that pain limited motion. As to a TDIU, the RO granted entitlement to a TDIU from March 5, 2017, but the Veteran clarified that he was still seeking entitlement to a TDIU prior to that date. Thus, the provisions of 38 C.F.R. § 4.16(b) must be considered which provide for referral of cases for extraschedular consideration if a Veteran is unemployable by reason of service-connected disability, but does not meet the schedular requirements for consideration under 38 C.F.R. § 4.16(a). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and extent of her service-connected thoracic spine disability. The examiner should review the record prior to examination. The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should ensure that the report states to what degree(s) pain limits motion of the spine in flexion, extension, lateral flexion, and rotation. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself. The examiner should elicit relevant information as to the Veteran's flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran's functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. Any opinions expressed by the examiner must be accompanied by a complete rationale. 2. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. 3. The AOJ should refer the issue of entitlement to a TDIU prior to March 5, 2017 under 38 C.F.R. § 4.16(b) to the appropriate department officials for extraschedular consideration. 4. Readjudicate the claim on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue(s) on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2017).