Citation Nr: 18146881 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 14-28 629 DATE: November 1, 2018 REMANDED Entitlement to an evaluation in excess of 40 percent disabling for lumbar degenerative disc disease (DDD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1972 to February 1976. In October 2018, the Veteran appeared before the undersigned Veterans Law Judge at a videoconference hearing. 1. Entitlement to an evaluation in excess of 40 percent disabling for lumbar DDD is remanded. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, the Board finds that there are outstanding records that must be associated with the claim file. At the October 2018 hearing, the Veteran indicated that he applied for disability benefits from the Social Security Administration (SSA) four years ago. The Board will attempt to obtain these records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 38 C.F.R. § 3.159 (c). In addition, the Veteran stated that he has received additional treatment, including treatment at a VA emergency room approximately two weeks prior to the hearing, as well as private treatment in June 2018. Further, the Board finds that a new examination is needed. At the October 2018 hearing, the Veteran indicated that his symptoms have worsened since his last VA examination in June 2018. Under these circumstances, VA cannot rate the service-connected disability without further medical clarification. Hence, the Veteran is entitled to a new VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, the Board finds that there are several deficiencies in the June 2018 VA examination. For example, the examiner did not note intervertebral disc syndrome (IVDS) and episodes requiring bedrest in the examination report. However, evidence presented at the October 2018 disputed this finding. In addition, at the hearing, the Veteran’s testimony suggested that he may have neurological symptoms associated with his back disability, as well as potential functional impairment equivalent to ankylosis. Upon remand, the Board asks that this additional evidence be addressed. 2. Entitlement to a TDIU is remanded. Finally, the Board notes that the issue of TDIU is inextricably intertwined with the issues remaining on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the Board finds it necessary to remand this issue. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In particular, the Board points to treatment records referenced by the Veteran at his October 2018 videoconference hearing, which would show additional treatment at a VA emergency room approximately two weeks prior to the hearing, as well as private treatment in June 2018. In addition, obtain records from the SSA pertaining to any application or award of disability benefits to the Veteran. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for an appropriate VA examination in order to determine the current level of severity of the service-connected disability on appeal. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. All necessary diagnostic testing should be performed. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion testing (ROM) for the spine for active motion, passive motion, weight-bearing, and nonweight-bearing. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner is asked to address where the Veteran’s pain starts during range of motion testing, any potential functional impairment equivalent to ankylosis, any prescribed bedrest in the Veteran’s medical history, any suggested surgeries, and any neurological symptoms stemming from the Veteran’s service-connected disability. Finally, the examiner is also asked to provide an opinion regarding the effect of the Veteran’s service-connected disability on his employability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel