Citation Nr: 18160719 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 15-15 676 DATE: December 27, 2018 REMANDED Entitlement to an evaluation in excess of 20 percent disabling for service-connected intervertebral disc syndrome, previously rated as lumbosacral strain, for the period prior to May 17, 2018, is remanded. Entitlement to an evaluation in excess of 40 percent disabling for service-connected intervertebral disc syndrome, previously rated as lumbosacral strain, for the period beginning May 17, 2018, and thereafter, is remanded. Entitlement to an evaluation in excess of 10 percent disabling for service-connected status post-left ankle surgery is remanded. Entitlement to an evaluation in excess of 10 percent disabling for service-connected status post-right ankle surgery is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to April 1996. In his February 2014 notice of disagreement (NOD), the Veteran stated that he feels he is unemployable because of his service-connected back and ankle disabilities. Such a statement may be reasonably construed as raising the issue of entitlement to a TDIU. The United States Court of Appeals for Veterans Claims (Court) has directed that when entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). 1. Entitlement to an evaluation in excess of 20 percent disabling for service-connected intervertebral disc syndrome, previously rated as lumbosacral strain, for the period prior to May 17, 2018, is remanded. 2. Entitlement to an evaluation in excess of 40 percent disabling for service-connected intervertebral disc syndrome, previously rated as lumbosacral strain, for the period beginning May 17, 2018, and thereafter, is remanded. 3. Entitlement to an evaluation in excess of 10 percent disabling for service-connected status post-left ankle surgery is remanded. 4. Entitlement to an evaluation in excess of 10 percent disabling for service-connected status post-right ankle surgery is remanded. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, the Board finds that new examinations are needed in order to comply with the Court’s precedential decision of Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court found the final sentence of 38 C.F.R. § 4.59, created a requirement that whenever possible in the cases of joint disabilities, “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” 38 C.F.R. § 4.59. The most recent VA examinations do not meet these specifications. For example, the July 2018 ankle examination report does not provide range of motion findings that were obtained on active versus passive motion. The June 2018 back examination noted pain with weight-bearing, but did not note range of motion findings for weight-bearing, nor did it describe the location, severity, and relationship to the condition, as prescribed by the disability benefits questionnaire. Accordingly, new examinations are needed. 5. Entitlement to a TDIU is remanded. Finally, the Board notes that the issue of TDIU is inextricably intertwined with the issues remaining on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the Board finds it necessary to remand this issue. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In addition, provide the Veteran with appropriate notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. All efforts to comply with this directive should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. After completing the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his back and ankle disabilities. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. All necessary diagnostic testing should be performed. 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 examiner is asked specifically to provide range of motion testing (ROM) for the back and ankles for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for both the back and ankles and opposite joint the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both the back and ankles and opposite joint the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. Finally, the examiner is asked to address the Veteran’s contentions regarding the impact of his service-connected disabilities on his employability. CONTINUED ON NEXT PAGE 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel