Citation Nr: 18120331 Decision Date: 07/23/18 Archive Date: 07/20/18 DOCKET NO. 15-27 511 DATE: July 23, 2018 REMANDED Entitlement to a disability rating greater than 20 percent for degenerative disc disease of the lumbar spine with hip pain is being remanded. Entitlement to a total rating due to individual unemployability (TDIU) is being remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from August 1980 to August 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated February 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Board video-conference hearing was held in February 2018 before the undersigned Veterans Law Judge (VLJ), and a transcript of the hearing has been associated with the record. The issue of unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). In light of the Court’s holding in Rice and the evidence of record, the Board considers an inferred TDIU claim as part of his pending increased rating claim, and it has accordingly been listed as an issue on the title page of this decision. 1. The issue of entitlement to a disability rating greater than 20 percent for degenerative disc disease of the lumbar spine with hip pain is remanded. A remand is necessary to associate with the record medical evidence regarding the Veteran’s low back disability, as well as to provide the Veteran with a VA examination in connection with his claim for an increased rating. VA Examination Since the May 2015 VA compensation examination for the Veteran’s low back disability, the Veteran asserts that his disability is worse. See Board hearing transcript dated February 12, 2018 (Hearing Transcript) at pg. 15. Hip pain is a part of the service-connected back disability and VA treatment records indicate that the Veteran’s right hip pain has increased. See e.g. VA treatment record dated June 17, 2016. Given the contention of worsening disability, a new examination is warranted. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Medical Treatment Records During the February 2018 Board hearing, the Veteran testified that he was prescribed bed rest by a physician for incapacitating episodes affecting his low back during 2011. See Hearing Transcript at pg. 7. A February 2010 VA examination report reflects what appears to have been the Veteran’s subjective history of an incapacitating episode during the prior 12 months, including hospitalization for four days at Temple VA Medical Center. See VA examination report dated February 2, 2010 at pg. 14. A VA examination report dated February 2011 reflects the Veteran’s report of an incapacitating episode of 100 days duration during the prior 12 months. See VA examination report dated February 28, 2011 at pg. 3. The Board notes that an incapacitating IVDS episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2017). Under VA rating criteria, a veteran may be entitled to a separate disability rating from 10 to 60 percent for IVDS, depending on the duration of the incapacitating episode. Id. Inasmuch as the Board is remanding for an updated examination, the Veteran is invited to identify or submit medical treatment records in support of his claim for increase. TDIU Lastly, as noted, entitlement to a TDIU has been raised by the record. Rice, supra. However, the Veteran has not yet been sent notice for his TDIU claim, has not completed a TDIU form, and the issue has not yet been addressed by the RO. Therefore, on remand, the RO should comply with the duties to notify and assist in connection with the Veteran’s TDIU claim. Further, the issue of entitlement to a TDIU is intertwined with the increased rating claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. Also, provide the Veteran with an additional opportunity to submit private treatment records, including any information regarding bed rest prescribed by a physician during the pendency of this claim. 2. Provide the Veteran appropriate notice in connection with the inferred claim for TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the RO should undertake all further appropriate actions for development of this claim. 3. Then, schedule the Veteran for a VA examination to determine the current severity of his low back disability. The claims file must be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his low back disability with hip pain. **In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). 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. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” 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. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale should be provided, citing to specific evidence of the record, as necessary. (Continued on the next page)   4. Then, readjudicate the remanded issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate time period within which to respond. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel