Citation Nr: 20021222 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-39 796 DATE: March 25, 2020 REMANDED The issue of entitlement to an increased rating for a low back disability rated as 10 percent disabling prior to July 12, 2011, 100 percent disabling from July 12, 2011 to November 1, 2011, 10 percent disabling from November 1, 2011 to August 5, 2019, and 20 percent disabling thereafter, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 16, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to January 1980 and from August 1984 to February 2003. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Jurisdiction is currently with the RO in Atlanta, Georgia. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in May 2018 and a transcript of the hearing has been associated with the claims file. This matter was previously before the Board in September 2018 at which time it was remanded for further development. 1. Entitlement to an increased rating for a low back disability rated as 10 percent disabling prior to July 12, 2011, 100 percent disabling from July 12, 2011 to November 1, 2011, 10 percent disabling from November 1, 2011 to August 5, 2019, and 20 percent disabling thereafter, is remanded. After reviewing the evidence of record, the Board finds that an additional remand is warranted to obtain an addendum opinion as the VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire conducted in August 2019 is inadequate for adjudicative purposes. Specifically, regarding flare-ups, the August 2019 examiner indicated that the Veteran was not actually flared at the time of examination and therefore it was not possible to take accurate measurements with goniometer to make precise determinations. Such a finding is contrary to the Court of Appeals for Veterans Claims' (Court) holding in Sharp v. Shulkin. 29 Vet. App. 26 (2017). In Sharp, the Court indicated that, when evaluating musculoskeletal disabilities, Deluca v. Brown, 8 Vet. App. 202 (1995) and its progeny anticipated that VA examiners would need to estimate functional loss that occurred during flare-ups, using information procured from relevant sources of record in addition to examination reports, including lay statements from veterans themselves. 29 Vet. App. at 34-35. As such, the increased rating issue is remanded because the August 2019 VA examiner did not make the necessary flare-up estimates from relevant sources of record other than the VA examination report. Additionally, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. The VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire conducted in August 2019 does not contain the necessary findings regarding active motion, passive motion, weight-bearing, and non-weight-bearing testing of the spine. Therefore, the examination is inadequate for adjudicative purposes and the increased rating issue is also remanded in order to comply with the Court’s holding in Correia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 16, 2011 is remanded. The claim for entitlement to a TDIU is inextricably intertwined with the claim for an increased rating that is remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of such claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (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: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Forward a copy of this remand to a qualified examiner for the purpose of obtaining an opinion, including a retrospective opinion (based on file review). (a.) Please provide an opinion regarding the functional effects of flare-ups of the Veteran’s service-connected low back disability, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up range of motion was additionally limited to 60 degrees or less (the measurement required for the next higher rating) prior to July 12, 2011 or from November 1, 2011 to August 5, 2019; and 30 degrees or less (the measurement required for the next higher rating) from August 5, 2019 onward. Please explain why or why not. Please estimate functional loss that occurred during flare-ups, using information procured from relevant sources of record in addition to examination reports, including lay statements from Veteran. (b.) State whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limited motion to 60 degrees or less (the measurement required for the next higher rating) prior to July 12, 2011 or from November 1, 2011 to August 5, 2019; and 30 degrees or less (the measurement required for the next higher rating) from August 5, 2019 onward. Please explain why or why not. (c.) Provide an opinion (based on file review only) regarding the adequacy of the back range of motion (ROM) testing conducted on prior physical examinations. On each examination during which ROM was not tested on passive ROM and/or in weight-bearing/non-weight-bearing conditions, the examiner should state whether, despite such tests not having been conducted, all testing required to adequately assess the Veteran’s pain on motion was completed. Please explain why or why not. (d.) In determining whether all testing required to adequately assess the Veteran’s pain on motion was completed on prior VA examination, the examiner should specify which range of motion tests (passive vs. active) were not previously conducted, and whether the testing conducted previously was done in weight-bearing or non-weight-bearing conditions. The examiner should also state whether there is any structural abnormality of the involved joint, such that passive range of motion in this case would be more limited than active, and, if testing was conducted only in weight-bearing conditions, whether testing in weight-bearing conditions is more demonstrative of the degree of pathology in the Veteran’s case. The examiner should also indicate if testing was previously conducted only in non-weight-bearing conditions. (e.) **If, and only if, the examiner determines that all medically required testing was not conducted, the examiner should also attempt to provide retrospective assessments of what the likely ranges of motion would have measured on each prior examination, had ROM been tested in (1) passive motion, (2) in weight-bearing, and (3) in non-weight-bearing. If this assessment is not feasible, please clearly explain why that is so. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.