Citation Nr: 18141128 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-06 304 DATE: October 9, 2018 REMANDED The claim of entitlement to an initial evaluation in excess of 10 percent for degeneration of the lumbosacral intervertebral disc (lumbar spine disability) is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Army from October 1974 through March 1976. The Veteran passed away during the pendency of the appeal. The Appellant is the Veteran’s surviving spouse; a January 2018 VA letter appropriately determined the Appellant met the eligibility requirements for substitution. An August 2016 Board of Veterans’ Appeals (Board) decision found the hearing request had been withdrawn on this case, and found that the issue of entitlement to TDIU was on appeal, and remanded the claims at hand for further development. The record contains a clear statement dated February 2016 reflecting the desire to withdraw the prior hearing request. New medical records were associated with the record after the case was certified to the Board. The Appellant waived Agency of Original Jurisdiction (AOJ) review of such. 1. Entitlement to an initial evaluation in excess of 10 percent for degeneration of the lumbosacral intervertebral disc (lumbar spine disability) is remanded. Prior to his death, the Veteran sought an increased initial rating for his service-connected lumbar spine disability. On appeal, the Appellant contends the Veteran had to take Vicodin on a 24-hour basis for his lumbar spine disability, and was unable to stand and walk for prolonged periods of time due to this disability. The Appellant also contends that the Veteran had to use a scooter due to pain resulting from this disability. The Veteran’s lumbar spine disability has been evaluated at 10 percent for the period on appeal. The February 2012 VA examination noted no loss of range of motion in the Veteran’s thoracolumbar spine. Forward flexion was noted to be normal, with painful motion evident at 85 degrees (last 5 degrees are painful). Pain on movement was noted, with no localized tenderness, guarding, or pain to palpation. The Veteran was noted not to require the use of any assistive device. Diagnostic testing was noted to show a broad-based disc bulge at L2/3, L3/4, and L4/5, and vacuum phenomena at L5/1 with moderate Modic Type II peridiscal degenerative bone changes. The VA examiner noted that the Veteran’s thoracolumbar spine condition did not impact his ability to work. The Board previously found that there was sufficient evidence that the Veteran’s condition may have worsened so as to warrant remanding the matter for a new VA examination. The ordered VA examination was not performed, as the Veteran passed away, and the case was returned to the Board. On review, the file contains newly associated medical records, including a November 2015 VA treatment note, which documents the findings of a CT scan, and indicates that the Veteran reported radicular symptoms to the right gluteal region. VA must provide a claimant a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on a claim for compensation. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). A thorough medical examination is one that “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (further citations omitted). After careful consideration, the Board finds that remand for a retrospective VA examination is warranted. The Board cannot determine what significance the new medical records have in terms of functional loss, or whether degree of functional loss can be ascertained from the record by a medical professional. Additionally, the Board lacks the medical expertise to determine if the notation of the Veteran’s history of radiculopathy is related to his service-connected condition. 2. The claim of entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the claim discussed above. As such, consideration of the Veteran’s TDIU claim must be deferred pending the outcome of the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. The AOJ shall request that the Veteran’s widow submit a detailed description of the Veteran’s symptoms, flare-ups, and any treatments or medications he used or was prescribed for his spinal condition. The AOJ may also take any other development steps they deem necessary. 2. After the appropriate time has been afforded for a response, transmit the claims file (including a copy of this remand order) to an appropriate clinician for a retrospective examination to determine the severity of the Veteran’s service-connected lumbar spine disability for the period on appeal prior to his death. To the extent possible, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, based on the evidence of record. The examiner should detail the Veteran’s functional impairment, and the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran’s such on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the examiner cannot offer an opinion without resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence/information, if any, would allow for a more definitive opinion. 3. Finally, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. The case should then be returned to the Board. The appellant 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel