Citation Nr: 18156708 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 07-38 447 DATE: December 11, 2018 REMANDED A rating in excess of 20 percent for service-connected spondylosis with degenerative disc disease of the lumbar spine (referred to hereinafter as “back disability”) from June 13, 2009, to August 28, 2016, is remanded. Whether to refer for consideration of entitlement to an extraschedular rating for a service-connected back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to February 1986. This matter is on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) which granted an increased rating of 10 percent for his service-connected back disability. A September 2009 rating decision increased the rating to 20 percent, but only as of June 13, 2009. As an even higher rating is possible, however, the issue remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In May 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board of Veterans’ Appeals (Board) remanded this matter for additional development in July 2010. In a May 2016 decision, the Board denied a rating in excess of 10 percent for the Veteran’s service-connected back disability through February 24, 2009; granted an increase to only 20 percent from February 25, 2009, to June 12, 2009, and denied a rating in excess of 20 percent beginning June 13, 2009. He appealed to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Partial Remand in a February 2017 Order. The portions of the decision that denied a rating in excess of 10 percent from January 20, 2009, to February 24, 2009, and in excess of 20 percent beginning February 25, 2009, were vacated and remanded back to the Board as a result. Meanwhile, a September 2016 rating decision granted an increased rating of 40 percent for the Veteran’s service-connected back disability as of August 29, 2016. The Board granted an increased rating to 40 percent from January 20, 2009, to June 12, 2009, in a July 2017 decision. A rating in excess of 20 percent from June 13, 2009, to August 28, 2016, was denied, as was a rating in excess of 40 percent beginning August 29, 2016, and referral for consideration of an extraschedular rating (for the entire period on appeal). The Veteran appealed to the Court. A May 2008 Order granted an Amended Joint Motion for Partial Remand. The result was vacatur and remand back to the Board of the portions of the decision that denied a rating in excess of 20 percent from June 13, 2009, to August 28, 2016, and referral for consideration of an extraschedular rating. 1. Rating in Excess of 20 Percent for a Service-Connected Back Disability from June 13, 2009, to August 28, 2016 The Board must comply with Court Orders. This extends to the terms of a JMPR granted by the Court in an Order. Forcier v. Nicholson, 19 Vet. App. 414 (2006). Here, the Amended Joint Motion for Partial Remand granted by Order of the Court set forth case law about rating musculoskeletal disabilities based on functional loss, to include with repeated use over time, due to pain, weakness, fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The June 2015 VA medical examination concerning the Veteran’s service-connected back disability then was found inadequate because there was additional functional loss (in terms of range of motion) with repetition but to provide an opinion as to additional functional loss with repeated use over time was deemed speculative. The rationale for why, “not witness to activities,” contravenes other case law. Specifically, this case law holds that before accepting that to provide an opinion would be speculative without direct observance, it must be clear that attempts were made to base an opinion on information ascertained otherwise. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Lyles v. Shulkin, 29 Vet. App. 107 (2017). This is not clear with respect to the June 2015 VA medical examination, so the Board was deemed to have erred in relying on it. The Amended Joint Motion for Partial Remand accordingly directed the Board to provide the Veteran with a new VA medical opinion “as to whether pain, weakness, fatigability[,] or incoordination … cause[d] additional functional loss with repeated use over … time … from June 13, 2009, to August 28, 2016.” A remand is necessary to accomplish this. 2. Whether to Refer for Consideration of entitlement to an Extraschedular Rating for a Service-Connected Back Disability Issues are inextricably intertwined when a determination on one could impact the other. Harris v. Derwinski, 1 Vet. App. 180 (1991). Adjudication of the impacted issue must be deferred until the other issue has been adjudicated. Id. Here, whether to refer for consideration of entitlement to an extraschedular rating for the Veteran’s service-connected back disability is inextricably intertwined with a rating in excess of 20 percent for this disability from June 13, 2009, to August 28, 2016. How practical application of the regular schedular rating criteria is indeed remains to be seen, as these criteria have not yet been applied (in adjudicating the increased rating). 38 C.F.R. § 3.321(b)(1). Deferral of the referral issue is necessary until after this has occurred. This matter is REMANDED for the following action: 1. Arrange for a VA medical opinion to be provided regarding the Veteran’s service-connected back disability. The examiner specifically shall determine whether pain, weakness, fatigability, or incoordination caused additional functional loss with repeated use over time from June 13, 2009, to August 28, 2016. If so, an estimate of this additional functional loss shall be provided. The examiner is advised that providing such in terms of range of motion or degrees of motion would be most useful to the Board. All relevant sources of information shall be considered in providing the opinion. This includes a review of VA medical examinations, treatment records, statements from the Veteran, statements from individuals who know him, and any other evidence available in the claims file. Whether an interview of the Veteran is needed is left to the examiner’s discretion. If any of the instructions in this paragraph cannot be completed, the examiner shall clearly explain why not. 2. After completing paragraph 1, readjudicate the Veteran’s entitlement to a rating in excess of 20 percent for his service-connected back disability from June 13, 2009, to August 28, 2016. Then readjudicate whether to refer for consideration of entitlement to an extraschedular rating for this disability. If either decision made is not favorable to the Veteran, issue a supplemental statement of the case. Allow him and his representative time to respond before returning this matter to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised that he has the right to submit additional argument or evidence, whether himself or through his representative. Kutscherousky v. West, 12 Vet. App. 369 (CONTINUED ON NEXT PAGE) (1999). All remands by the Board, including this matter, or the Court further are to be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel