Citation Nr: 18147688 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 10-35 588 DATE: November 5, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the spine and intervertebral disc syndrome (previously rated as spondylosis and wedge deformities of the thoracolumbar spine, with facet arthrosis), prior to April 10, 2017 and as 20 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 to May 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2009 and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board denied these claims in a September 2017 decision. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In an Amended Joint Motion for Remand (JMR), the parties agreed to vacate the Board’s decision and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in April 2018. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the spine and intervertebral disc syndrome (previously rated as spondylosis and wedge deformities of the thoracolumbar spine, with facet arthrosis), prior to April 10, 2017 and to 20 percent thereafter, is remanded. The Veteran asserts that his degenerative arthritis of the spine should have a higher rating prior to April 10, 2017 and higher than 20 percent disabling, thereafter. In the Joint Motion for Remand (JMR), the parties determined that, in denying higher ratings for the Veteran’s arthritis of the spine, the Board erred because it did not ensure that the October 2010 and March 2016 VA examinations were adequate for rating purposes because they failed to address whether the Veteran’s flare-ups caused functional loss. During the October 2010 VA examination, the Veteran reported that he experienced daily aching pain in the mornings. Although the examiner stated that there was no additional functional impairment following the repetitive use of the lumbosacral and thoracic spines, he did not address additional functional loss during flare-ups. In addition, during the March 2016 VA examination, the Veteran specifically reported flare-ups of the thoracolumbar spine, described his flare-ups as stiffness in the morning and difficulty moving when getting out of bed. Although the examiner stated that the Veteran’s pain significantly limited his functional ability during flare-ups, he did not describe the additional range of motion loss in degrees because the Veteran was not being examined during a flare-up. The Board finds that a remand is necessary in order to obtain a VA examination that addresses whether the Veteran’s relevant functional loss during a flare-up are indicative of a greater level of severity of arthritis than as reflected by the currently assigned ratings. Furthermore, the Board acknowledges that the Court recently found that, depending on the frequency and duration, an attempt should be made to schedule the Veteran for an examination during a flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Ardison v. Brown, 6 Vet. App. 405 (1994); Voerth v. West, 13 Vet. App. 117 (1999). Moreover, the examiner should also offer an opinion regarding flare-up based on estimates derived from information procured from relevant sources, including the examiner’s determination in that regard 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. Sharp, supra; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, a medical opinion that cannot be provided without resort to speculation is adequate when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, supra; see also Jones v. Shinseki, 23 Vet. App. 382 (2010). Finally, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained. Thereafter, all identified records should be obtained. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran contends that his service-connected disabilities render him unable to secure substantially gainful employment. In the JMR, the parties agreed that remand is warranted because entitlement to TDIU is inextricably intertwined with the issue of the increased ratings for the lumbar spine where the Veteran will be afforded another VA medical opinion that could impact the Board’s analysis as to whether the Veteran has met the criteria for a schedular TDIU rating under 38 C.F.R. § 4.16(a). The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from September 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected degenerative arthritis of the spine. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. If possible, such examination should be conducted during a flare-up. The examiner(s) should identify the current nature and severity of all manifestations of the Veteran’s degenerative arthritis of the spine, as appropriate. a) In conduction such examination(s), the examiner(s) should record the range of motion of the thoracolumbar spine observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. b) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. c) If the Veteran endorses experiencing flare-ups of his thoracolumbar spine, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. d) Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. e) The examiner should also state whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. f) The examiner should comment upon the functional impairment resulting from the Veteran’s thoracolumbar spine. A rationale should be provided for any opinion offered. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk