Citation Nr: 18158163 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-15 386 DATE: December 14, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for lumbosacral strain prior to July 28, 2016, and in excess of 40 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disability is remanded. INTRODUCTION The Veteran served on active duty from May 1979 to July 1992. In April 2017, the Veteran testified at a Board videoconference hearing from the RO in Houston, Texas, before the undersigned Veterans Law Judge sitting in Washington, DC. The hearing transcript has been associated with the record. When this case was most recently before the Board in June 2018 the case was remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran’s claims are decided. Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the course of the June 2018 remand, the Board noted that by way of a recent decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran’s reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. During the most recent October 2018 VA examination, the examiner acknowledged the Veteran’s reports of flare-ups. The examiner also acknowledged the Veteran’s reports of additional functional impairment caused by his flare-ups; however, the examiner provided a boilerplate statement indicating the “variability of the veteran’s symptoms and functional loss of the lumbar spine is such that providing range of motion analysis during a typical flare-up or after repetitive use is not possible.” Unfortunately, the examiner wholly failed to provide the detailed discussion of the Veteran’s flare-ups—including frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups—which is required by the Court in Sharp. Further, the Board also noted a second recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), in the course of the June 2018 remand. In that decision, the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. During the October 2018 examination, the examiner checked a box indicating Correia compliant testing could not be performed or was not medically appropriate. However, the examiner did not provide any details as to why she was unable to perform this otherwise required assessment. The Board further finds the issue of entitlement to a TDIU rating had been reasonably raised. In Rice v. Shinseki, the Court held that a request for a TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected. 22 Vet. App. 447, 453 (2009). By way of a July 2018 correspondence, the Veteran indicated that as a result of his back disability he is currently unemployable. Based on the foregoing, the Board finds a remand is also necessary in order to adequately address this issue. Further, the Board notes the Veteran has not provided a completed VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. As such, all indicated development should be conducted to obtain additional evidence to support the Veteran’s claim. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, these matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Also provide all required notice and development relative to the Veteran’s pending appeal for a TDIU rating. In this regard, specifically initiate development to obtain a completed VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability from the Veteran, as well as a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits to the Veteran’s former employer, if indicated. 3. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Following the above-noted examination, the examiner should provide concrete examples of functional impairments caused by the Veteran’s service-connected disabilities. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran’s competent lay statements. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran’s service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. In particular, the examiner should comment on whether the Veteran’s lumbar spine disability alone is sufficient to preclude substantially gainful employment, and if not, whether the Veteran’s combination of service-connected disabilities would be sufficiently disabling as to preclude substantially gainful employment. 4. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel