Citation Nr: 18155361 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-34 477 DATE: December 4, 2018 REMANDED An initial evaluation in excess of 10 percent for lumbar spine degenerative disc disease 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 August 1979 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. The Board remanded the issue of service connection for a lumbar spine disability and entitlement to nonservice-connected pension benefits to the Agency of Original Jurisdiction (AOJ) in January 2011. On remand, the AOJ granted service connection for lumbar spine degenerative disc disease and assigned a 10 percent disability evaluation effective from November 19, 2007. See May 2011 rating decision. Also, on remand, and in an August 2014 rating decision, the AOJ granted entitlement to nonservice-connected pension benefits. In January 2016, the Board remanded the issue of entitlement to an increased rating for the Veteran’s service-connected lumbar spine disability for issuance of a statement of the case (SOC) pursuant to the guidance set forth in Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was issued in June 2016 on the increased rating issue along with the raised issue of entitlement to a total rating based on individual unemployability (TDIU); subsequently, the Veteran perfected this appeal. After substantial compliance with the Board remand directives by the AOJ, the case has since been returned to the Board for appellate review. 1. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative disc disease, currently diagnosed as IVDS, is remanded. In July 2016, the Veteran underwent a VA examination for back conditions. Days earlier, the United States Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016) that to be adequate, examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The VA examination did not address passive motion. In light of the foregoing and the fact that the July 2016 examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination before a decision can be rendered on her claim. 2. Entitlement to a TDIU is remanded. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a). VA interprets the schedular requirements in 38 C.F.R. 4.16 (a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling. Generally, VA does not presume a claim for a TDIU is a claim for increase in all service-connected disabilities. The Veteran currently has a combined evaluation of 20 percent: residuals of a left great toe fracture as 10 percent disabling and lumbar spine degenerative disc disease at 10 percent disabling. Therefore, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). Nevertheless, notwithstanding the above listed schedular criteria, a Veteran may be awarded a TDIU on an extraschedular basis if she is nonetheless unemployable on account of her service connected disabilities. Such a TDIU claim may be submitted to the Director of the Compensation Service. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Additionally, the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In this case, the Veteran contends that her service-connected foot condition and back condition interfere with her ability to maintain employment. In July 2016, a VA examiner found that the Veteran had difficulty lifting, bending, sitting for prolonged periods of time, and standing for prolonged periods of time due to her service-connected back condition. Therefore, the Board finds that remand of the Veteran’s TDIU is required so that the RO can refer the matter to the Director of the Compensation Service following reexamination of the Veteran. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of her spine disability. 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 lumbar spine disability alone and discuss the effect of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living. 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). The examiner should also state whether the Veteran has incapacitating episodes of IVDS and if so, note their frequency and duration. 2. Then, refer the TDIU claim to the Director of Compensation for consideration of an extraschedular TDIU rating. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel