Citation Nr: 18156622
Decision Date: 12/11/18	Archive Date: 12/10/18

DOCKET NO. 09-26 626
DATE:	December 11, 2018
REMANDED
Entitlement to an increased rating in excess of 10 percent for a low back disability 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 in the Navy from August 1984 to July 2004.  
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision by the Huntington, West Virginia (RO) of the United States Department of Veterans Affairs.  The case has since been transferred to the RO in Roanoke, Virginia.  
The Veteran testified at a November 2012 hearing held before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the claims file.  
In a December 2017 decision, the Board denied the Veteran’s claims for an increased rating for a low back disability and his claim for entitlement to TDIU.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  By an Order dated August 14, 2018, the Court vacated the Board’s December 2017 decision and remanded for readjudication in compliance with the Joint Motion for Remand.
Increased rating in excess of 10 percent for a low back disability
The Joint Motion for Remand found that the Board’s December 2017 decision failed to ensure VA complied with its duty to assist under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) to provide examinations that are adequate for rating purposes.
The Court found that the August 2017 and December 2015 VA examinations, relied on by the Board in its December 2017 decision, were inadequate because the examiners did not (1) adequately explain their statements regarding why they could not provide opinions about the extent of the Veteran’s functional loss on repetitive use over time or during flare-ups without resorting to speculation or (2) indicate that they had considered all procurable and assembled data.    
Consequently, the Court determined a new VA examination is necessary.  
TDIU   
Because the new VA examination of the Veteran’s low back may reveal limitations in his ability to secure or follow a substantially gainful occupation, the increased rating claim would have significant impact on the TDIU claim.  Therefore, these claims are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  As such, both claims should be adjudicated together, and the TDIU issue is remanded with the increased rating claim. 
The matters are REMANDED for the following action:
1. Associate with the claims file updated VA treatment records.
2.   Schedule the Veteran for a VA spine examination; the claims folder must be reviewed in conjunction with the examination. The examiner must describe in detail all current manifestations of the service-connected low back disability.  
The examiner must test and record range of motion in active motion, passive motion, weight bearing and nonweight bearing, if applicable.  Flare-ups, to include frequency, duration, characteristics, precipitating and alleviating factors, severity and the extent of resultant functional impairment, must be described.  All appropriate testing must be accomplished.  Full and complete rationales for all opinions expressed, or explanations for failures to opine, are required.
3. Upon completion of the above, readjudicate the remanded issues.  If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case.  The case should then be returned to the Board for appellate review if otherwise in order.  
 
WILLIAM H. DONNELLY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. M. Lunger, Associate Counsel