Citation Nr: 19156830 Decision Date: 07/23/19 Archive Date: 07/23/19 DOCKET NO. 17-33 490 DATE: July 23, 2019 REMANDED Entitlement to a rating in excess of 10 percent for Crohn’s arthritis of the low back prior to June 23, 2016 is remanded. Entitlement to a rating in excess of 20 percent for Crohn's arthritis of the low back since June 23, 2016 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. REFERRED ISSUE Under 38 C.F.R. § 3.1(p), a “claim” must be submitted on an application form prescribed by the Secretary. See 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). Accordingly, the appellant is advised that if he wishes to file claims for increased ratings for bilateral lower extremity radiculopathy he must do so on the prescribed form. REASONS FOR REMAND The Veteran served on active duty from June 1962 to July 1965. Crohn’s arthritis Following the June 2017 statement of the case, and prior to the transfer of the case to the Board, additional relevant evidence was associated with the Veteran’s claims file. Specifically, the Veteran was afforded a VA examination to consider the severity of his low back disorder in October 2017. Despite the receipt of this pertinent evidence a supplemental statement of the case addressing this evidence was not issued. See 38 C.F.R. § 19.31 (b)(1) (A supplemental statement of the case will be furnished if the RO receives additional pertinent evidence after a statement of the case or a supplemental statement of the case has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board). Further development is therefore required as the Veteran is entitled to a supplemental statement of the case that reflects consideration of the additional pertinent evidence. Id. Additionally, the October 2017 VA examiner noted the Veteran’s report of flare-ups but declined to offer an opinion as to the nature of any additional limitation of function based on flare-ups without resorting to speculation because the Veteran was “not being seen during a flare-up.” The October 2017 medical opinion is inadequate in light of the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). That decision, which is binding law, holds that VA examiners must attempt to estimate the nature of any functional loss during a flare-up based on all information that can be feasibly derived, including the lay statements of the Veteran. In this case, it is not clear that the examiner considered the lay statements of the Veteran or his extensive medical treatment records prior to determining that functional loss could not be estimated without resort to speculation. Accordingly, remand is required to obtain a new medical examination addressing the nature and severity of Crohn’s arthritis of the low back. Individual unemployability The issue of entitlement to a total disability evaluation based on individual unemployability must be deferred pending the development requested herein. 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 an appellant’s claim for the second issue). Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. If the agency of original jurisdiction cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The agency of original jurisdiction must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of his Crohn’s arthritis of the low back. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran reports flare-ups or the record reveals flare-ups of spine symptoms, the examiner must expressly address the severity, frequency and duration; name the precipitating and alleviating factors and estimate “per the veteran” the extent to which they affect functional impairment. If feasible, an estimate of any such additional functional impairment should be expressed in terms of degrees of range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to Crohn’s arthritis of the low back and discuss the effect of the disability on any occupational functioning and activities of daily living. Following the examination, the examiner must opine whether it is at least as likely as not that the Veteran’s Crohn’s arthritis of the low back alone, or in combination with all of his other service-connected disabilities, is so disabling that the claimant was unable to perform any job that is consistent with his education and occupational experience. The evidence shows that the Veteran has reported past employment as a custodian, and as a service technician. In addressing the appellant’s ability to work due to his service connected Crohn’s arthritis of the low back, only his service connected disorders and his educational and occupational experience may be considered. The claimant’s age and all nonservice-connected disorders may not be considered. For the purposes of this case, sedentary work is work which primarily involves a job sitting down, lifting no more than 10 pounds at a time, and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Jobs are sedentary if walking and standing are required occasionally and the other sedentary criteria are met. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.