Citation Nr: 20009996 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 19-24 101 DATE: February 6, 2020 REMANDED An evaluation higher than 20 percent disabling for fractures of T9, T11, and T12 with an anterior wedging of T11 and a lateral subluxation of T10 over T11, status post open reduction and internal fixation with hardware and bone graft, is remanded. A total disability rating based upon individual unemployability (TDIU) due to the Veteran’s service-connected back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1998 to June 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision.   1. An evaluation higher than 20 percent disabling for fractures of T9, T11, and T12 with an anterior wedging of T11 and a lateral subluxation of T10 over T11, status post open reduction and internal fixation with hardware and bone graft, is remanded. A review of the record shows the Veteran’s December 2019 VA lumbar spine examination does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016). Correia mandates that certain examinations include the testing described in 38 C.F.R. § 4.59 (2018), or an explanation as to why such testing is not warranted or not possible. The Board observes the examination does not include all of the following: active range of motion testing results, passive range of motion testing results, weightbearing range of motion testing results, and nonweightbearing range of motion testing results. The VA examiner stated that "passive ROM of the spine was not performed as it is not feasible to do this in a safe and reasonable manner." The examiner did not provide a bases for this opinion. The examiner also reported, "non-weight bearing assessment is not applicable. There is no objective evidence of pain when the spine is in a non-weight bearing position at rest." Applicability is not the correct legal basis for determining whether a required test, such as a nonweightbearing assessment, is necessary. For example, it is possible that a patient may have additional limitation of motion when bending to pick up a common object. Correia requires such testing or an adequate explanation as to why such testing cannot be accomplished. There is another back examination from April 2018. However, the Board finds that the examination does not comply with Correia because the answers provided by the examiner are all the same for pain with nonweightbearing, pain with passive range of motion, and pain with weightbearing – "cannot be performed or is not medically appropriate." The report is inadequate because the examiner did not provide a bases for these opinions. The Board notes if the examiner finds the Veteran experiences flare-ups during his next back assessment, the examination must also comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Accordingly, the Board does not find the December 2019 and April 2018 VA back examinations sufficient for rating purposes, and a remand is required for a new examination. 2. A TDIU due to the Veteran’s service-connected back disability is remanded. The Veteran noted at his April 2018 VA back examination that he has not worked in years and that working would increase the severity of his back pain. The Board recognizes that a claim for an increased rating encompasses a claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) if raised by the record or the Veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that, at this time, it need not consider any disability other than the service-connected back disability in adjudicating the TDIU claim currently before the Board. Such a TDIU claim is known as a "Rice TDIU" because it was raised during the administrative appeal of the Veteran's claim for an increased rating for her service-connected back disability and it is, therefore, a component of that claim for benefits related solely to that disability. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). Such a claim is limited to whether a veteran is unemployable exclusively due to the service-connected back disability. Furthermore, the Board observes that the Veteran is already in receipt of a combined 100 percent evaluation for his service-connected disabilities from December 20, 2019. The Court has recognized that a 100 percent rating under the rating schedule indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his or her disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a Veteran has a 100 percent disability rating for a "single disability," and TDIU for a sole disability may satisfy this requirement. See Bradley, 22 Vet. App. at 292 (analyzing 38 U.S.C. § 1114 (s)). Thus, if any of the Veteran's service-connected disabilities alone rendered him unable to obtain and sustain employment, he may be entitled to SMC. At this time, a remand is warranted as the issue of entitlement to a TDIU is intertwined with the increased rating claim for the Veteran’s lumbar spine disability. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any other updated VA treatment records and additional private treatment records related to the Veteran’s claims. 2. Ask the Veteran to complete a formal VA TDIU claim form. 3. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected lumbar spine disability. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. For each examination report, the examiner must include all the following: (a.) Active range of motion testing results. (b.) Passive range of motion testing results. (c.) Weightbearing range of motion testing results. (d.) Nonweightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e., active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his lumbar spine disability on employment. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. Sarah B. Richmond Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.