Citation Nr: 1808321 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-16 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a low back disability prior to October 28, 2014, and in excess of 20 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and V.Q. ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to August 1981 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for a low back disability, evaluated at 10 percent disabling. This matter also comes to the Board on appeal from an August 2010 rating decision in which the RO denied entitlement to a total disability rating. In May 2014, the Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the claims file. In a February 2015 rating decision, and during the pendency of the appeal, the RO granted an increased rating for a low back disability, evaluated at 20 percent effective October 28, 2014. As this does not represent a maximum grant of the benefit sought on appeal, the Board will review these staged ratings. In August 2014 and May 2016, the Board remanded the case for further development of the record, including obtaining a new VA examination and for referral to the Director of VA Compensation and Pension Service for extraschedular consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets further delay from the additional remand of the claims for an increased rating for a low back disability and for TDIU, but it is necessary to ensure there is a complete record and so that the Veteran is afforded every possible consideration. Low back disability The Veteran contends that an initial disability rating in excess of 10 percent prior to October 28, 2014, and in excess of 20 percent thereafter, is warranted for his service-connected low back disability. The Veteran was afforded VA examinations in March 2009 and October 2014. The Board finds that these examination reports are inadequate for ratings purposes. Specifically, VA regulations provide that joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. 38 C.F.R. § 4.59. While the examiners recorded the Veteran's range of motion, the reports do not specify whether testing was done for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The reports do not reflect at what degree pain begins, including during repetitive use and during flare-ups. Therefore, the examination reports are ambiguous on whether these levels of testing were done. Recently, the United States Court of Appeals for Veteran's claims has held that VA examiners have a duty to estimate the limitation of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The October 2014 examination report reflects that the Veteran reported flare-ups during inclement rainy and cold weather, which resulted in him being unable to get out of bed. However, the examiner did not include any estimate as to the additional limitation of motion experienced during these flare-ups. As such, the Board remands the case, in order that an adequate VA examination can be obtained, so that the severity of the Veteran's low back disability can be assessed. Prior to obtaining a new VA examination, any outstanding, pertinent VA outpatient treatment records and private treatment records identified by the Veteran should be obtained. The most recent VA outpatient treatment records on file are dated in January 2017. TDIU With regard to the issue of entitlement to a TDIU, a decision on the increased rating claim for a low back disability being remanded herein may affect the claim for TDIU. Any grant of an increased rating claim could significantly change the adjudication of the TDIU issue because such a grant could increase the Veteran's overall combined disability percentage. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issue is resolved or prepared for appellate consideration. See id. (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records dated since January 2017 and any private treatment records identified by the Veteran. 2. Then, schedule the Veteran for a VA examination to assess the current severity of the Veteran's low back disability. The examiner must conduct any testing deemed necessary and provide all findings such as range of motion, stability, etc. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must pay particular attention to the following: (a) The examination must include testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner should note at what degree motion of pain begins and ends. (b) The examiner must provide an opinion on additional loss of range of motion due to pain, weakness, fatigability, and/or incoordination. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. (c) The examiner must provide an opinion as to whether there is additional loss of range of motion during flare-ups and after repetitive use. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and repetitive use, the examiner should explain why. The examiner should note at what degree of motion pain begins and ends during flare-ups and after repetitive use. In addressing additional loss of range of motion during flare-ups, the examiner is asked to comment on the Veteran's report that during inclement rainy and cold weather, he is unable to get out of bed. (d) To the extent possible, the examiner is asked to estimate loss of motion due to pain currently and as reported in the March 2009 and October 2014 VA examination reports based upon the medical evidence of record and the Veteran's lay statements. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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 of Veterans' Appeals 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 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals 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) (2017).