Citation Nr: 18153612 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-13 278 DATE: November 28, 2018 REMANDED Entitlement to an increased rating in excess of 20 percent prior to July 29, 2015, and in excess of 40 percent thereafter for a low back disability is REMANDED for additional development. Entitlement to a total disability rating based on individual unemployability is REMANDED for additional development. REASONS FOR REMAND The Veteran had active military service with the U.S. Army from March 1991 to October 1992, and from September 2004 to March 2005. During this time, she was awarded the National Defense Service Medal and the Global War on Terrorism Medal. These matters come to the Board of Veteran’s Appeals (Board) on appeal from a September 2011 rating decision from the Department of Veterans Affairs (VA) regional office (RO) in St. Petersburg, Florida. 1. Entitlement to an increased rating in excess of 20 percent prior to July 29, 2015, and in excess of 40 percent thereafter for a low back disability is remanded. The Board sincerely regrets the delay that inevitably will result from the remand of this claim, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. For her already service-connected lower back disability, the Veteran asserts that a higher evaluation is warranted than the 20 percent currently assigned prior to July 29, 2015, and that a higher evaluation is also warranted than the 40 percent currently assigned after this date. She asserts that her condition has significantly worsened. In conjunction with her claim for an increased rating, the Veteran underwent multiple VA examinations in July 2015. See, e.g., July 2015 Urinary Tract Disability Benefits Questionnaire (DBQ); July 2015 Peripheral Nerve Conditions DBQ; July 2015 Back Conditions DBQ; July 2015 Intestinal Conditions DBQ. The examiner opined that the Veteran’s reported bowel impairment “lacks evidence of a work-up or diagnosis” and thus was less likely than not due to her lumbar strain condition. See July 2015 Medical Opinion DBQ. The examiner further opined that the Veteran’s claimed bladder impairment “lacks evidence of diagnosis” and was less likely than not due to her lumbar spine condition. Id. Regarding the Veteran’s reporting of radiculopathy, the examiner opined that the condition “lacks objective evidence of diagnosis” and cited to a 2010 nerve conduction study for the Veteran that did not indicate any evidence for neuropathy, radiculopathy or nerve entrapment. Id. However, the Veteran has more recently submitted a statement asserting that her service-connected back condition has worsened. See April 2017 Affidavit. Specifically, she indicated that her back condition has worsened to the point that she can no longer bend and has to sit when engaging in self-care tasks such as getting dressed. Id. She also maintained that she cannot stand for more than 10 minutes at a time, that she can sit for no more than 20 minutes, cannot drive for more than 15 to 20 minutes, and that her pain keeps her awake at night. Id. She further reported that as a result of her back condition, she has weakness in her legs to the point that she falls once a month as her legs give out, and that she had such difficulty climbing stairs and with falling that she had to move to a single floor residence. Id. The Veteran also submitted an opinion from a private doctor who conducted a phone interview with her, and afterwards opined that the Veteran’s lower back condition had significantly worsened with flare-ups occurring “at least weekly.” See September 2017 Expert Medical Opinion for Service Connected Disability. He further posited that the Veteran had bilateral radicular lower extremity pain that was as least as likely as not a manifestation of nerve root irritation that was secondary to her service-connected lower back disability. Id. Notably, the opinion proffered does not include any current clinical findings pertaining to the Veteran’s back disability. Accordingly, given the evidence that the Veteran’s current disability picture has possibly changed, and considering that her last VA examinations concerning her lower back condition occurred over three years ago, the Board finds that the most recent VA examinations and clinical findings of record may not adequately reveal the present state of the Veteran’s service-connected lower back disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board finds, therefore, that contemporaneous examinations are required to ascertain the current severity of the Veteran’s service-connected lower back disability and possibly related symptoms. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). 2. Entitlement to a total disability rating based on individual unemployability is remanded. In conjunction with the Veteran’s claim for an increased evaluation for her service-connected lower back disability, a claim for a total disability rating based on individual unemployability was also filed in August 2010. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the issue of entitlement to TDIU is, in part, dependent on the outcome of the claim of entitlement to increased ratings for the Veteran’s service-connected lower back disability, since any potential grant of the remanded issue could result in a higher overall disability rating during the period at issue. See 38 C.F.R. § 4.16 (2017); Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). See also August 2010 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (asserting that her service connected disability precludes employment). Therefore, after the AOJ has completed the additional development requested herein with regard to the remanded claim for compensation, the issue of TDIU should be readjudicated in light of the additional evidence; and if the claim is not granted, the matter should be returned to the Board. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. After completion of the above development, schedule the Veteran for an additional VA examination in the appropriate specialty to determine current severity of the Veteran’s service-connected lower back disability, as well as the appropriate VA examinations to determine whether the Veteran’s reported bilateral lower extremity radiculopathy, bowel impairment, and bladder impairment are manifestations of the Veteran’s lower back disability. The electronic claims file, including a copy of this remand, must be made available for the examiner to review. The examination report must include a notation that this record review took place. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. The examiner should specifically address the relevant evidence as well as Veteran’s statements and regarding subsequent manifestations and treatment of her lower back disability. The examiner should describe all pertinent symptomatology associated with the Veteran’s lower back disability, and should provide the following information: a. The examiner should report the results of range of motion testing for the Veteran’s lumbar spine using a goniometer. b. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. c. The examiner should comment upon the existence and frequency of any incapacitating episodes (i.e., 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) as well as any additional symptoms such as bowel and / or bladder impairment. d. The examiner should discuss in detail any occupational impairment resulting from the Veteran’s service connected low back disability. e. The examiner should specifically address the Veteran’s complaints of pain that radiates from her back into her lower extremities and falling due to her lower back condition. See April 2017 Affidavit. 3. After completing the requested development, and any additional notification and/or development that may be warranted, readjudicate the claims for increased rating for a lower back disability and entitlement to a TDIU based on the additional evidence of record. If any of the benefits remain denied, the Veteran and her attorney must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel