Citation Nr: 1804722 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-08 984A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for post-operative residuals of a herniated disc of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from August 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of these matters are with the RO in St. Petersburg, Florida. The Veteran testified at an October 2017 travel board hearing before the undersigned. A transcript of this hearing is of record. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU rating is part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran's TDIU claim is part and parcel of the increased rating claim on appeal, and is properly before the Board. Thus, the TDIU claim is reflected on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Recently, in Sharp v. Shulkin, the Court addressed the adequacy of a VA examiner's findings concerning additional functional loss during flare-ups of a musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp v. Shulkin, 29 Vet.App. 26 (2017). The Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare and estimate "per the veteran" the extent to which flares affect functional impairment. Thus, in light of the Court's determination in Sharp, the Board finds that this matter must be remanded for a new VA examination and opinion addressing the limitation of motion during flare-ups, as the Veteran's most recent April 2017 VA examination did not address this issue. With regard to the Veteran's TDIU claim, the Board finds that, as the issue of whether the Veteran is entitled to a TDIU may be affected by the outcome of his increased rating claim for a lumbar spine disability, the issues are inextricably intertwined. The Veteran's TDIU claim cannot be decided until his increased rating claim has been considered. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the severity of his lumbar spine disability, to include all orthopedic and neurological manifestations. The examiner should also address the nature and etiology of the scar on the Veteran's lumbar spine area. Provide the examiner with access to the Veteran's electronic VBMS file, Virtual VA file, and a copy of this remand. A complete rationale for any opinions must be provided. All indicated tests must be performed. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Further, in accord with the requirements of 38 C.F.R. § 4.59 , the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 2. Then, readjudicate the claim for a higher rating for, the lumbar spine disability on appeal with consideration of all applicable orthopedic, neurological, and scar diagnostic codes, and the claim for a TDIU. If any benefit sought is denied, in whole or in part, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ LESLEY A. REIN 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).