Citation Nr: 19129282 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 09-42 934 DATE: April 16, 2019 REMANDED 1. The issue of entitlement to a disability rating in excess of 20 percent for the service-connected low back disability is remanded. 2. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to October 1978. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2012, the Veteran testified before the undersigned as part of a hearing conducted via video teleconference. A copy of the transcript of that hearing has been associated with the claims file. This claim was remanded in February 2013 for further development. In September 2017, the Board issued a decision denying a rating in excess of 20 percent for the low back disability, as well as entitlement to a TDIU. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By an August 2018 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board’s September 2017 decision as to the issues of the increased rating for a low back disability and entitlement to a TDIU and remanded the case for action consistent with the JMPR. The Board’s decision that denied an increased rating for left lower extremity radiculopathy was not disturbed. 1. The issue of entitlement to a disability rating in excess of 20 percent for the service-connected low back disability is remanded. The JMPR essentially directs the Board to provide the Veteran with a VA examination for the low back disability. Specifically, the purpose of the new examination is to determine, to the extent possible, the degree of functional loss and loss of range of motion due to flare-ups and repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the Veteran has not been afforded a VA examination that measures his range of motion upon nonweight-bearing, and under both active and passive conditions, for his service-connected low back disability. See Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Thus, a remand is necessary to provide the Veteran with an examination to evaluate his low back disability. 2. The issue of entitlement to a TDIU is remanded. The claim involving entitlement to a TDIU is inextricably intertwined with the increased rating claim for the low back disability remanded above. Consideration of this claim will be deferred pending development as directed herein. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all non-duplicative VA treatment records relating to the Veteran and his claim. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, those findings provided should include range of motion of the lumbar spine, including tests for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner must indicate all points at which range of motion testing results in functional loss and pain. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability and discuss the effect of this condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training to provide the information. 3. Thereafter, the claims on appeal should be re-adjudicated. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel