Citation Nr: 18157635 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 09-04 350 DATE: December 13, 2018 REMANDED Entitlement to an initial rating in excess of 20 percent for lumbar spine degenerative disc disease with stenosis (low back disability) is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from February 1969 to April 1970, including service in Vietnam. This matter was most recently remanded by the Board in November 2017 for further development. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed with respect to the claim on appeal and that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Low Back Disability The Veteran contends that he is entitled to an initial evaluation in excess of 20 percent for his low back disability. The Veteran’s most recent VA examination was in December 2017 and he reported a constant pain level of 9/10. He also reported five falls within the past month and stated it was hard for him to vacuum and clean the floor. The examiner indicated that the Veteran reported no flare-ups of the thoracolumbar spine. The examiner further indicated that consideration of flare-ups was “not applicable.” No measurements were provided regarding the Veteran’s limitation in range of motion during a flare-up. A review of the medical and lay evidence demonstrates that the Veteran has reported flare-ups of his spine condition. As the December 2017 VA examiner did not appear to consider these lay statements in assessing functional loss during flare-ups, the examination is inadequate. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). As such, a new examination is required. 2. Radiculopathy of the Bilateral Lower Extremities The Veteran contends that he is entitled to higher ratings for his service-connected bilateral radiculopathy of the lower extremities, to include on an extraschedular basis. For the right and left lower extremities, ratings of 10 percent are effective prior to December 29, 2017, and ratings of 20 percent are effective thereafter. However, the Board finds that the Veteran’s claims should be referred for extraschedular consideration. See 38 C.F.R. § 3.321 (b) (1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321 (b) (1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). In the instant case, the Veteran has complained that his bilateral radiculopathy of the lower extremities causes balance problems, difficulty walking, and frequent falls. During a July 2010 lumbar therapy evaluation, the Veteran stated that he previously worked as a driver for hotels, but was no longer able to drive. VA examiners have noted that the Veteran’s condition precludes both prolonged sitting and prolonged standing. Additionally, in a September 2014 report, Dr. J.H. opined that the Veteran’s limitations preclude him from meaningful work, including both physical and sedentary tasks. The Board finds that there is at least a question as to whether the Veteran’s current schedular evaluation contemplates the extent or severity of his reported symptoms. Accordingly, the matter is referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether assignment of extraschedular ratings for right and left lower extremity radiculopathy is warranted. Id. 3. TDIU A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, development actions performed in connection with the Board’s November 2017 remand did not substantially comply with the Board’s directives. While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the claim for a TDIU. The November 2017 remand directed the RO to arrange for a Vocational Rehabilitation Specialist to conduct a vocational assessment. The remand instructions provided that if such a specialist was not available, that fact should be expressly noted in the record and the Veteran should be evaluated by another appropriate professional in connection with his TDIU claim. The Board notes that a January 2018 memorandum is of record, indicating that a Vocational Rehabilitation Specialist was not available to conduct a vocational assessment. Nonetheless, the RO did not otherwise arrange for the Veteran to be evaluated by another medical professional with regard to the impact of his service-connected disabilities on his ability to function in an occupational setting. As such, a remand is necessary to comply with the Board’s remand directives. 4. SMC Finally, because a decision on the issues herein could significantly impact a decision on the issue of entitlement to SMC based on the need for regular aid and attendance or housebound status, the issues are inextricably intertwined. A remand of the claim for SMC is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his low back disability. The examiner should be given access to the entire claims file and should note review of it prior to issuing an opinion. All indicated tests and studies should be performed. The VA examination must include range of motion testing in the following areas: active motion; passive motion; weight-bearing; and non-weight-bearing. Also, in order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 2. Refer the issues of entitlement to higher disability evaluations for service-connected right and left lower extremity radiculopathy to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether assignment of extraschedular ratings are warranted. (Continued on the next page)   3. Schedule the Veteran for an examination by an appropriate clinician regarding the occupational impact of his service-connected PTSD, low back disability, and bilateral lower extremity radiculopathy. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his ability to work. In the examination report, the examiner should describe the limitations and impact of the Veteran’s service-connected PTSD, low back disability, and bilateral lower extremity radiculopathy on employment. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel