Citation Nr: 18136376 Decision Date: 09/19/18 Archive Date: 09/18/18 DOCKET NO. 12-07 311 DATE: September 19, 2018 REMANDED The issue of entitlement to a rating higher than 20 percent for a lower back disability for the period prior to April 27, 2012, is remanded. The issue of entitlement to a TDIU for the period prior to March 23, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1991 to September 1992 and from January 2000 to March 2000. This matter is before the Board following his appeal of a May 2010 rating decision. By way of background, in a May 2017 decision, the Board denied the lower back increased rating claim and declined to address the issue of entitlement to a TDIU prior to March 23, 2012. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2017 Order, the Court vacated and remanded the Board’s decision to the extent that it failed to address the TDIU issue and denied an increased rating for the low back for the period prior April 27, 2012, for development consistent with the parties’ Joint Motion for Partial Remand. 1. Entitlement to a rating higher than 20 percent for a lower back disability for the period prior to April 27, 2012, is remanded. The parties to the Joint Motion have determined that, in denying a rating higher than 20 percent for the low back for the period prior to April 27, 2012, the Board erred in relying on a January 2010 VA examination because it did not include specific findings subsequently determined by the Court to be required. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Correia v. McDonald, 28 Vet. App. 165 (2016). As such, the Board finds that a retrospective opinion should be obtained that considers the prior January 2010 examination and all other relevant evidence dated prior to April 27, 2012, and provides, to the extent possible, the range of motion during the appeal period prior to April 27, 2012, of the Veteran’s thoracolumbar spine (1) in active motion; (2) in passive motion; (3) in weight-bearing; and (4) in nonweight-bearing, to specifically include where pain began. 2. Entitlement to a TDIU for the period prior to March 23, 2012, is remanded. As a decision on the lower back increased rating claim for the period prior to April 27, 2012, will impact a decision on the issue of entitlement to a TDIU prior to March 23, 2012, (as the schedular criteria for a TDIU are not met prior to that date), the TDIU prior to March 23, 2012, claim is inextricably intertwined with the increased rating claim and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).] The matters are REMANDED for the following action: Send the claims file to a VA orthopedic examiner for a retrospective opinion. Following a review of the record, and, in particular, the relevant evidence for the period prior to April 27, 2012, to include the January 2010 VA examination report, the examiner should provide an opinion as to the range of motion for the period prior to April 27, 2012, of the Veteran’s thoracolumbar spine (1) in active motion; (2) in passive motion; (3) in weight-bearing; and (4) in nonweight-bearing. The examiner should also provide an opinion regarding the extent to which the Veteran’s low back disability impaired his ability to meet the demands of a job, either sedentary or physical during the period prior to March 23, 2012. The examiner’s opinion should include an evaluation of the limitations and restrictions imposed by his service-connected low back disability on such routine work activities as interacting with coworkers; sitting, standing, and walking; and lifting, carrying, pushing, and pulling. A rationale for any opinions expressed should be set forth. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel