Citation Nr: 1815334 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 11-27 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from September 1981 to September 1984 and from November 1986 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that the issue of entitlement to a TDIU was denied in a January 2016 rating decision. Although previously denied, TDIU is an element of an increased rating claim and is properly before the Board when, as here, such a claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board has added it to the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Since the time of the Veteran's last examination, the United States Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), that VA examination reports must comply with the language of 38 C.F.R. § 4.59 by evaluating range of motion "for pain on both active and passive motion, in weight bearing and nonweight-bearing." Id. The June 2015 VA examination does not comply with 38 C.F.R. § 4.59 as interpreted by the Court. Therefore, the Board finds another examination is necessary to accurately evaluate the severity of his low back disability pursuant to Correia. Also, the Veteran contends that he is unable to secure employment due to his low back disability. The TDIU claim is inextricably intertwined with the increased rating claim being remanded herein. New information obtained from the VA examination for the low back disability could produce further evidence regarding the Veteran's claim for TDIU, thereby affecting the adjudication of such claim. As such, adjudication of the TDIU claim must be deferred. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). In light of the remand, updated VA treatment records should be obtained Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Then, schedule the Veteran for a VA examination by an appropriate specialist to determine the severity of the Veteran's low back disability. The claims file, to include a copy of this remand must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. The VA examiner is requested to indicate all present symptoms and manifestations from the Veteran's service-connected back disability. The examiner should report complete range of motion findings for the affected joint regions of the back. Range of motion measurement must be provided in active motion and passive motion, and in weight-bearing and nonweight-bearing positions. Additionally, the examiner must document all functional loss of the affected joint region, including due to pain on use, weakness, repetitive motion, flare-ups, fatigue, and incoordination. Any functional loss must be documented in terms of additional lost degrees of range of motion. 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 also requested to provide an opinion on occupational functioning with regard to the back disability. The examiner should discuss the Veteran's ability to secure and maintain substantially gainful employment as a consequence of the service-connected back disability, The examiner should provide a detailed rationale for each opinion. If any of the requested opinions cannot be provided without resorting to speculation, the examiner should explain why it is not possible to provide an opinion. 3. Thereafter, readjudicate the issues on appeal, including the claim for a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. The case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).