Citation Nr: 18142765 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-03 298 DATE: October 17, 2018 REMANDED Entitlement to a rating in excess of 10 percent for lumbar strain with herniated nucleus pulposus and degenerative disc disease prior to April 4, 2016, and in excess of 20 percent on and thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REASONS FOR REMAND The Veteran had active service from October 1986 to May 1995. An October 2016 rating decision granted an increased rating of 20 percent disabling for the Veteran’s service-connected lumbar strain with herniated nucleus pulposus and degenerative disc disease effective April 4, 2016. As set forth below (in the remand portion of this decision), the Board finds that the issue of entitlement to a TDIU is on appeal. This claim is being remanded for further evidentiary development. 1. Entitlement to a rating in excess of 10 percent for lumbar strain with herniated nucleus pulposus and degenerative disc disease prior to April 4, 2016, and in excess of 20 percent on and thereafter is remanded. The Veteran contends that he suffers from increased severity of symptoms in his low back during flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) noted that, for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Further, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 32. The Board finds the most recent April 2016 examination to be insufficient as the examiner noted the Veteran’s lay statements as to the extent of his functional loss during a flare-up, but he did not offer range of motion or functional limitation estimates based on that information. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that the Veteran should be afforded an additional examination and opinion that addresses the medical matters raised by these issues. 2. Entitlement to a TDIU. A claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be properly before the Board if such a claim is alleged or raised by the record. Here, the Veteran indicated in his November 2016 substantive appeal that his service-connected lumbar spine disability impairs his employment ability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board accordingly finds that this issue is presently before it pursuant to Rice, restricted in scope to the increased rating claim on appeal, and must be considered in adjudication of this appeal. However, the Board finds the Veteran’s request for a TDIU rating is inextricably intertwined with the increased claim which the Board is remanding. This remanded claim, if resolved in the Veteran’s favor, could potentially affect whether the Veteran is eligible for a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will remand the Veteran’s TDIU appeal pending the resolution of the intertwined issue. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to his claims and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record. Upon receipt of all additional records, schedule the Veteran for a VA examination addressing the current nature and severity of the service-connected lumbar strain with herniated nucleus pulposus and degenerative disc disease. The record, including a complete copy of this remand, must be made available to the examiner for review, and the examiner must indicate in the examination report that the record was reviewed in conjunction with the examination. The examiner should ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups of this lumbar spine disability. The examiner is also asked to request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any 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. Additionally, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the spine examination should record the results of range of motion testing for pain-in active motion and passive motion and in weight-bearing and nonweight-bearing motions (where appropriate). If such are not applicable, the examiner should state such along with an explanation. Finally, the examiner is specifically instructed to consider and discuss the Veteran’s reports of being unable to work due to his service-connected lumbar spine disability. A complete and thorough rationale must be provided for all opinions. If the examiner cannot provide an opinion without resorting to speculation, then he or she must provide a complete and thorough rationale as to why an opinion cannot be provided. 2. The AOJ should conduct any development that may be indicated with respect to the issue of entitlement to TDIU as a consequence of the outcome of the remanded increased rating claim. 3. Then readjudicate the claims on appeal as listed on the title page of this Remand. If any benefit is not granted in full, send the Veteran a Supplemental Statement of the Case (SSOC) and give him and his representative opportunity to respond before returning the file to the Board for further appellate consideration of the claim. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel