Citation Nr: 1806981 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-28 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Iowa Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and her father ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from October 2002 to December 2010. These matters are before the Board of Veterans' Appeals (Board) from of a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in January 2013. The Veteran testified before the undersigned Veterans Law Judge at a November 2015 videoconference hearing. In December 2015, the Board remanded the case for additional development. Although the December 2015 Board remand reflects that the Board assumed jurisdiction of the TDIU claim as part of the increased rating claim for the back disability on appeal pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation), the issue of an entitlement to an increased rating for PTSD adjudicated in the March 2016 rating decision is not currently before the Board. Although an October 2016 supplemental statement of the case (SSOC) notes that the increased rating claim for posttraumatic stress disorder (PTSD) is part and parcel of the Veteran's TDIU claim, the record does not reflect that the Veteran has filed a notice of disagreement (NOD) with the denial of an increased rating for PTSD in the March 2016 rating decision. The Board notes that an appeal consists of a timely filed NOD, and after a statement of the case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200. Thus, the Board does not have jurisdiction over the issue of entitlement to an increased rating for PTSD. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND A VA examination of the back was conducted in April 2016 pursuant to the Board's December 2015 remand. At the examination, the Veteran reported flare-ups. However, in response to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, the examiner stated that because the examination was being conducted during a flare-up, it could not be reliably predicted what the range of motion would be during a flare-up. However, and in addition to a requirement for detailed range of motion findings per the precedential decision of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), a VA examiner has the obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. Accordingly, a new VA examination of the back is warranted. The claim for a TDIU is inextricably intertwined with the increased rating claim for a back disability and will also be remanded. Accordingly, the case is REMANDED for the following actions: 1. Schedule a VA examination by an appropriate medical professional to assess the current severity of the Veteran's service-connected lumbar spine disability. (a) All indicated testing should be performed, including range of motion studies in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to provide such an opinion, he or she should clearly explain the basis for that conclusion. (b) Considering the Veteran's reported history, please provide an opinion describing functional impairment of the lumbar spine due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, to what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A rationale for all opinions expressed should be provided. 3. Finally, readjudicate the appeal. If the benefits sought remain denied, issue a SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).