Citation Nr: 18147814 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-02 509 DATE: November 6, 2018 REMANDED Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease from November 5, 2010, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND In July 2017 the Board issued a decision denying a restoration of the prior 40 percent rating for the Veteran’s service-connected degenerative disc disease, a rating in excess of 10 percent prior to November 5, 2010 and in excess of 20 percent thereafter for degenerative disc disease, a rating in excess of 20 percent for left lower extremity radiculopathy and entitlement to TDIU. A 10 percent rating for left lower extremity radiculopathy was granted prior to September 20, 2014. The Veteran appealed the portion of the decision denying a rating in excess of 20 percent for degenerative disc disease and the denial of entitlement to TDIU to the Court of Appeals for Veterans Claims (Court). Pursuant to a March 2018 Joint Motion for Partial Remand (JMPR) the Court vacated the portion of the July 2017 Board decision denying entitlement to TDIU and a rating in excess of 20 percent for degenerative disc disease from November 5, 2010. 1. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease from November 5, 2010, is remanded. The parties to the March 2018 JMPR agreed that the November 2010 and September 2014 VA examinations relied upon by the Board in the July 2017 decision are inadequate because neither examination provided an adequate finding regarding whether there was additional functional loss after repetitive use over time. As there is no VA examination of record which adequately addresses the totality of the Veteran’s functional loss due to service-connected degenerative disc disease one must be obtained on remand. 2. Entitlement to TDIU, to include on an extraschedular basis, is remanded. The record includes an August 2018 vocational assessment and opinion showing the Veteran is unemployable because of his service-connected disabilities. The Veteran’s combined disability rating does not currently meet the schedular criteria for TDIU (38 C.F.R. § 4.16(a)), however, the rating of his degenerative disc disease could impact his combined rating. The TDIU claim is inextricably intertwined with the increased rating claim being remanded. A remand of the TDIU is required. When unemployability is shown and the veteran does not meet the numeric evaluation requirements set forth in § 4.16(a), the Board must first refer the case to the Compensation Service Director for consideration of extraschedular TDIU, 38 C.F.R. § 4.16 (b), prior to any grant of the benefit. See Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim was referred to VA’s Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Board acknowledges the representative’s argument that referral of the issue of TDIU under 38 C.F.R. § 4.16 (b) to the Director of Compensation Service is unnecessary as a result of Wages v. McDonald, 27 Vet. App. 233 (2015). The Board notes however, that the Court stated the following: “[a]s to the Secretary’s argument that de novo review of the Director’s decision by the Board renders the referral process in §4.16(b) meaningless, we note that such a referral is the Secretary’s chosen procedure under § 4.16(b).” The Board points out that the regulatory procedures have not been changed; 38 C.F.R. § 4.16 (b) is still in effect. Accordingly, consideration of entitlement to a TDIU, on an extraschedular basis, is remanded for referral to the Directory of Compensation Service for consideration. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his degenerative disc disease. 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 the Veteran’s back disability alone and discuss the effect of it on any occupational functioning and activities of daily living. The examiner must provide a specific finding as to functional loss following repetitive use over time. 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). 2. After completion of the above, readjudicate the claim for the rating for the back disability since November 5, 2010. 3. If after readjudating the back claim, the Veteran does not meet the schedular requirement for TDIU for any period since January 2009, refer the claim of entitlement to TDIU to the Compensation Service Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel