Citation Nr: 20021449 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 09-11 423A DATE: March 25, 2020 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the thoracolumbar spine is remanded. Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected DDD of the thoracolumbar spine prior to December 20, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty September 2005 to October 2006, with additional service in the Navy Reserve from February 2001 to October 2010.This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, the Veteran testified before a Decision Review Officer (DRO) and, in June 2016, he and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the record. In September 2016, the Board remanded the case for additional development and, in April 2018, denied, as relevant, the Veteran’s claims for a higher initial rating for his back disability and a TDIU. He subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court) and, in July 2019, the Court granted the Secretary of VA’s and the Veteran’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s April 2018 decision. Thus, such matter now returns for further consideration. 1. Entitlement to an initial rating in excess of 20 percent for DDD of the thoracolumbar spine. In the July 2019 JMPR, the parties found that the Board relied upon inadequate VA examinations conducted in December 2007, March 2016, and June 2017 in denying the Veteran’s claim for a higher initial rating for his DDD of the thoracolumbar spine in the April 2018 decision. Therefore, a remand is necessary in order to afford the Veteran another VA examination that addresses the nature and severity of such disability, and ensure compliance with all pertinent legal authority, to include DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. Entitlement to a TDIU due to service-connected DDD of the thoracolumbar spine prior to December 20, 2010. The Veteran asserts his service-connected DDD of the thoracolumbar spine prevented him from securing and following a substantially gainful occupation prior to December 20, 2010. Thus, the Board finds that the development and adjudication of the issue remanded herein could impact the Veteran’s eligibility for, and entitlement to, a TDIU. 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); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Veteran’s claim for a TDIU is inextricably intertwined with the remanded claim, and adjudication of the former issue must be deferred pending the outcome of the latter issue. The matters are REMANDED for the following action: The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected DDD of the thoracolumbar spine. The record, including a copy of this Remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s DDD of the thoracolumbar spine. (B) The examiner should record the range of motion of the thoracolumbar spine observed on clinical evaluation in terms of degrees for all relevant planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his back, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should also comment upon the functional impairment resulting from the Veteran’s DDD of the thoracolumbar spine. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.