Citation Nr: 18154962 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 14-22 144 DATE: December 3, 2018 REMANDED The issue of entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the sacrococcygeal joints (“low back disability”) is remanded. The issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1959 to May 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted service connection for DJD of the sacrococcygeal joints and assigned an initial 10 percent disability rating. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in January 2017, and a transcript is of record. This case was previously before the Board in July 2017, at which time the Board denied a rating in excess of 10 percent for DJD of the sacrococcygeal joints and denied entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 order, the Court granted a May 2018 Joint Motion for Remand (JMR) vacating that decision and remanding it to the Board. In the May 2018 JMR, the parties agreed that the June 2016 VA examination, upon which the Board relied, may be inadequate because it did not comply with the requirements imposed by Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, although the VA examiner found that the Veteran’s had functional loss when his back was used over time, the examiner did not attempt to quantify the additional functional loss in terms of range of motion. See id. at 34-35 (holding that the Board erred when it relied on a medical opinion that an estimate of range-of-motion loss during a flare-up or after repeated use over time was not possible without observing function under those circumstances). Consequently, on remand, the AOJ should afford the Veteran a new examination and obtain an opinion that fully addresses all functional impairment of the Veteran’s disability, including any loss of range of motion, which results during flare-ups or with repeated use over time. The parties also agreed that the Board erred with regard to the Veteran’s TDIU claim, which the Board found to be raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) based on the Veteran’s statements during the January 2017 Board hearing. The parties noted that the Board denied the issue of entitlement to a TDIU without undertaking any additional development, such as requesting the Veteran complete a formal TDIU application, despite there being no information in the record regarding his work or educational history. Accordingly, on remand, the AOJ should develop a claim for a TDIU in accordance with Rice as indicated below. The matters are REMANDED for the following action: 1. Obtain any updated relevant treatment records and associate them with the claims file. 2. Provide the Veteran with proper VCAA notice that informs him of the evidence and information necessary to establish entitlement to a TDIU. He should also be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). Each executed form should be returned to VA. 3. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his low back disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. (a.) The examiner should describe the nature and severity of all manifestations of the Veteran’s low back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for the thoracolumbar spine on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the thoracolumbar spine cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c.) The examiner should also express an opinion concerning whether there would be additional functional impairment, such as weakness, excess fatigability, incoordination, or pain, on repeated use or during flare-ups. The examiner should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. If the Veteran denies any additional pain and/or functional limitation during flare-ups or with repeated use over time, such should be noted in the report. However, if the Veteran is not currently experiencing a flare-up and/or if the Veteran has not been evaluated after repeated use over time, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares or after repeated use over time expressed in terms of the degree of additional range of motion lost, or explain why he or she cannot do so. If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting the pertinent information discussed above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or after repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). (d.) If range of motion is not possible, the examiner should indicate whether the Veteran has unfavorable ankyloses of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. (e.) The examiner should also state whether the Veteran’s service-connected low back disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, erectile dysfunction, or right and/or left lower extremity radiculopathy as a result of his back disability. (f.) The examiner should also state whether the Veteran has incapacitating episodes of low back pain, and if so, the duration of the episodes. (g.) Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran’s low back disability has upon his ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected low back disability. A detailed explanation (rationale) is requested for all opinions provided, citing supporting clinical data and/or medical literature, as appropriate. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). (Continued on the next page)   4. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the claim for an increased rating for DJD of the sacrococcygeal joints and entitlement to a TDIU due to DJD of the sacrococcygeal joints. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel