Citation Nr: 20023065 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 10-35 588 DATE: April 2, 2020 REMANDED Entitlement to an increased rating for degenerative arthritis of the spine and intervertebral disc syndrome, evaluated as 10 percent disabling prior to April 10, 2017, 20 percent disabling effective April 10, 2017, and 40 percent disabling effective September 5, 2019 is remanded. Entitlement to a disability rating in excess of 10 percent prior to April 10, 2017, and in excess of 20 percent thereafter, for radiculopathy of the left lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent prior to April 10, 2017, and in excess of 20 percent thereafter, for radiculopathy of the right lower extremity is remanded. Entitlement to an effective date earlier than March 11, 2016 for service connection for radiculopathy of the left and right lower extremities is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.   REASONS FOR REMAND The Veteran served on active duty from May 1989 to May 2009. The Board of Veterans’ Appeals (Board) denied these claims in a September 2017 decision. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In an Amended Joint Motion for Remand (JMR), the parties agreed to vacate the Board’s decision and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in April 2018. This matter was remanded by the Board in November 2018. 1. Entitlement to an increased rating for degenerative arthritis of the spine and intervertebral disc syndrome, evaluated as 10 percent disabling prior to April 10, 2017, 20 percent disabling effective April 10, 2017, and 40 percent disabling effective September 5, 2019 is remanded. The Veteran contends that his low back disability symptoms warrant an increased disability rating. In accordance with the November 2018 Board remand, the Veteran had an examination for his back disability in September 2019. The examiner provided a diagnosis of degenerative arthritis of the spine. The Veteran reported flare-ups, describing his flare-ups as a “sharp pain”. Unfortunately, no medical evidence yet addresses the flare-ups the Veteran described during the October 2010 and March 2016 examinations and whether such flareups would result in additional functional loss. The JMR specifically noted that the October 2010 and March 2016 examinations were inadequate for rating purposes because the examiners did not adequately address whether the Veteran’s flare-ups caused functional loss. Accordingly, remand is required to ensure full compliance with the JMR by obtaining an addendum medical opinion which adequately addresses whether the Veteran’s flare-ups caused functional loss prior to the September 2019 examination. 2. Entitlement to a disability rating in excess of 10 percent prior to April 10, 2017, and in excess of 20 percent thereafter, for radiculopathy of the left lower extremity is remanded. 3. Entitlement to a disability rating in excess of 10 percent prior to April 10, 2017, and in excess of 20 percent thereafter, for radiculopathy of the right lower extremity is remanded. 4. Entitlement to an effective date earlier than March 11, 2016 for service connection for radiculopathy of the left and right lower extremities is remanded. 5. Entitlement to a TDIU is remanded. The Board notes the remaining issues on appeal are inextricably intertwined and must be developed together. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain a retrospective addendum medical opinion from a qualified VA medical professional regarding whether the Veteran’s flare-ups caused functional loss during the period from 2009 to 2017. The examiner should address functional impairment, if any, during flare-ups or when the Veteran’s back was used repeatedly. The estimated range of motion lost during a period of flare-up or overuse must be indicated in degrees. The examiner must ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss by alternative means and estimate the Veteran’s functional loss due to flares or repeated use based on all the evidence of record. Specific attention is invited to the October 2010 examination noting that the Veteran reported that he experienced daily aching pain in the mornings, and the March 2016 examination noting that the Veteran described his flare-ups as stiffness in the morning and difficulty moving when getting out of bed. See VBMS, document labeled VA Examination, receipt date 10/18/2010; see also, VBMS, document labeled VA Examination, receipt date 03/11/2016. If it is not feasible to determine any of the above requested information without resort to speculation, the examiner must provide an explanation for why this is so. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner. (CONTINUED ON NEXT PAGE) 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.