Citation Nr: 18144080 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-32 517 DATE: October 23, 2018 REMANDED Entitlement to an evaluation in excess of 20 percent for service-connected spondylolisthesis of the lumbar spine with degenerative changes and limitation of motion (hereinafter, low back disability), is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1974 to February 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from October 2012 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. While the Board acknowledges that the Veteran did not express timely disagreement with the AOJ’s August 2013 denial of his TDIU claim, the matter remains in appellate jurisdiction and is properly before the Board. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). During the pendency of the Veteran’s appeal seeking an increased evaluation for his service-connected low back disability, in a May 2015 rating decision, the Agency of Original Jurisdiction (AOJ) reduced the evaluation assigned for this disability from 50 percent to 20 percent, effective from August 1, 2015. Although the Veteran expressed disagreement with the proposal for this reduction, he did not file a notice of disagreement with this implementation. As such, the reduction is final and the propriety of such is not under the Board’s jurisdiction; however, the Board notes that an allowance (partial or full) of the underlying issue seeking an increased evaluation for this disability may restore the prior rating. In a June 2016 Decision Review Officer (DRO) decision and letter, the AOJ notified the Veteran that a rating reduction for his service-connected low back disability was, again, being proposed. The Veteran expressed disagreement with this proposal and requested a hearing with AOJ personnel on the matter. As of this writing, the requested hearing and proposed reduction have not been completed. While the issue before the Board is intertwined with the proposed reduction, which is under the AOJ’s jurisdiction, the Board need not defer action because, as will be discussed below, the issue is being remanded for further evidentiary development. Likewise, a remand to solicit a waiver of new evidence submitted to the Board in January 2018, after certification, is not necessary because of the remand for other matters. 1. Entitlement to an evaluation in excess of 20 percent for a service-connected low back disability, is remanded. The Veteran was last afforded a VA spine examination to determine the severity and frequency of his symptoms in February 2016 – 32 months ago. In January 2018, the Veteran submitted VA and private treatment records showing that his low back symptoms have increased in severity since the February 2016 VA examination, to the extent that surgery is being contemplated. Further, the Board notes that, while the prior spine examinations of record note that the Veteran experiences frequent and severe flare-ups of low back symptoms, the resulting limitation is not quantified as necessary under the United States Court of Appeal for Veterans Claims' (the Court’s) holding in Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). In light of above, a remand is necessary to provide the Veteran an adequate and contemporaneous VA spine examination. So that the VA examiner is fully apprised of the Veteran’s complete medical picture, updated private and VA treatment records must be obtained and associated with the record. 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As the Veteran’s TDIU claim is dependent on his combined evaluation and, in part, on the functional impairment associated with his service-connected low back disability, the Board must defer action on this intertwined issue. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment from the VAMC in Fayetteville, Arkansas, and all associated facilities dated after June 20, 2016. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to the issues remanded herein. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected low back disability. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary studies and tests should be conducted. The examiner(s) must describe the frequency and severity of the manifestations of the Veteran’s service-connected low back disability. *To the degree possible, it also would be helpful if the Veteran could be scheduled for a VA examination during a flare-up of his service-connected low back disability. *In addition to the information requested by the standard DBQ relating to disabilities of the thoracolumbar spine, the examiner must specifically address the following: - Provide findings for limitation of motion (expressed in degrees) for flexion and extension of the Veteran’s thoracolumbar spine during a flare-up of symptoms, currently and restrospectively. In doing so, please review the prior VA examination reports, and based on the information therein, provide the requested findings (limitation of flexion and extension of the thoracolumbar spine during flare-ups) for each examination undertaken during the pendency of the appeal (August 2012, July 2013, March 2015, February 2016, and currently). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. After undertaking any additional development deemed appropriate, and giving the Veteran and his representative a full opportunity to supplement the record, readjudicate the Veteran's appeal seeking an increased evaluation for his service-connected low back disability. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 5. Thereafter, the AOJ should make an effort to complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran’s complete educational and occupational history, scheduling the Veteran for appropriate VA examinations, and referring the Veteran’s TDIU claim to the Undersecretary for Benefits or the Director of the Compensation Service for appropriate action as per 4.16(b), if necessary. 6. Thereafter, the AOJ must readjudicate the Veteran's appeal seeking TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel