Citation Nr: 18146234 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 13-06 246 DATE: October 31, 2018 REMANDED Entitlement to an initial evaluation in excess of 10 percent disabling for degenerative joint disease of the lumbar spine prior to February 19, 2016 and in excess of 20 percent disabling thereafter is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disability is remanded. REASONS FOR REMAND The Veteran had active military service from February 1980 to July 1990. These matters come before the Board of Veterans’ Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. In a March 2016 rating decision, the Appeals Management Center (AMC) increased the Veteran’s back disability rating to 20 percent disabling effective from February 19, 2016. These matters were most recently before the Board in November 2017 when the Board denied the Veteran’s claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (hereafter Court). In an August 2018 Order, the Court vacated the Board’s decision with regard to these issues pursuant to a Joint Motion for Remand (JMR). 1. Entitlement to an initial evaluation in excess of 10 percent disabling for degenerative joint disease of the lumbar spine prior to February 19, 2016 and in excess of 20 percent disabling thereafter is remanded. The Veteran is in receipt of service connection for his back disability effective from January 18, 2007. He has been afforded examinations in October 2007, December 2011, February 2016, and April 2017. For the rating period prior to February 19, 2016, the JMR found that the Board failed to provide adequate reasons and bases because it failed to consider the December 2011 VA examination report notation that the Veteran reported that his baseline of pain increased from a 7-8 to a 9 when he had a flare-up and that this resulted in immobility. For the rating period from February 19, 2016, the JMR found that the Board failed to ensure that the February 2016 and April 2017 VA examiners included the testing required under 38 C.F.R. § 4.40. The 2017 examiner failed to explain whether pain resulted in additional range of motion loss and if so, how much additional loss, and the 2016 examiner failed to state how much loss of range of motion the term “moderate” encapsulates. The JMR noted that a remand is required for the Board to obtain an adequate examination. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities is remanded. The JMR noted that the Board failed to adequately consider the evidence that the Veteran had difficulty standing, sitting, concentration, and remaining alert, as well as changing positions all due to his back pain, and how this would affect sedentary work. In its November 2017 remand, the Board found that the issue of entitlement to a TDIU was raised in the Veteran’s claim for an increased rating for his back disability consistent with the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). Based on the foregoing, it must also be remanded. The matters are REMANDED for the following action: 1. Obtain updated treatment records, VA and non-VA. 2. Schedule the Veteran for an examination to assess the severity of his back disability. (A) The examiner should identify whether pain results in additional range of motion loss, and, if so, how much additional loss of range of motion is caused by pain. (B) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding 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 his back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning. 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). (C) The examiner should review the prior VA treatment records and examination reports (October 2007, December 2011, February 2016, and April 2017) and provide a retrospective opinion, if reasonably possible, which identifies the range of motion of the Veteran’s back in active motion, passive motion, weight-bearing, and non-weight-bearing. If it is not possible to provide such an opinion without resorting to mere speculation, please so state and provide an explanation as to why an opinion cannot be given. (D) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. (E) The examiner should describe the impact of the Veteran’s back disability on functioning and in   particular the impact of the Veteran’s difficulties with standing, sitting, changing positions, concentrating and remaining alert on sedentary occupational activities. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard