Citation Nr: 20028813 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-48 587 DATE: April 24, 2020 REMANDED Entitlement to a rating in excess of 20 percent for a lower back disability is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with unspecified depressive disorder is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2005 to October 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran had an informal conference with a Decision Review Officer (DRO), and the report is of the record. In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board notes that additional evidence has been received since the September 2018 statement of the case. Although the Veteran has not submitted a waiver of the Agency of Original Jurisdiction (AOJ) consideration of this evidence, as her claims are being remanded below, the AOJ will have an opportunity to review the evidence such that no prejudice results to her as a result of the Board’s consideration of this evidence for the limited purpose of issuing a comprehensive and thorough remand. 1. Entitlement to a rating in excess of 20 percent for a lower back disability. The Veteran is seeking a higher rating for her service-connected lower back disability. She was most recently afforded a VA examination for such disability in April 2018. However, at her March 2020 Board hearing, the Veteran reported that she had flareups, an altered gait, and she experienced radiculopathy in her lower extremities. As such, the record indicates that the Veteran’s lower back disability may have worsened since her last examination. Therefore, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of her lower back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Furthermore, the examination should be conducted in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. Entitlement to a rating in excess of 70 percent for PTSD with unspecified depressive disorder. With respect to her claim for higher initial ratings for PTSD, the Veteran and her representative essentially contend that the severity of her PTSD symptoms warrant a higher rating. In this regard, the record reflects that the Veteran’s most recent VA examination was in July 2016. However, at her March 2020 Board hearing, the Veteran testified that she had outbursts, anxiety, and inability to care for children, and she had her parental rights terminated. The Veteran further reported that her panic attacks resulted in an inability to mentally be present at work and perform continuing tasks without excessive breaks. In this regard, she stated that her intrusive memories, increased anxiety, and hypervigilance impaired her ability to focus on tasks. As such, the Board finds that the Veteran should be afforded a new VA examination that addresses the current severity of her PTSD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Snuffer, supra. 3. Entitlement to a TDIU. The Veteran contends that she is entitled to a TDIU due to her service-connected disabilities, such claim was received on April 21, 2016. The Board notes that the Veteran meets schedular threshold criteria for a TDIU as defined in 38 C.F.R. § 4.16 (a). In this regard, the Veteran has had a combined rating of 80 percent since August 18, 2015. Therefore, the Board finds that the Veteran has met the schedular threshold criteria for a TDIU for the duration of the appeal period. However, the Board observes that the outcome of the remanded claims of entitlement to an increased rating for PTSD and a lower back disability may impact such claim. Therefore, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with aforementioned remanded claims, and, therefore, adjudication of such claim must be deferred. See Parker v. Brown, 7 Vet. App. 116 (1994); 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 a veteran’s claim for the second issue). The Board further notes that the Veteran submitted a Veteran’s Application for Increased Compensation based on Unemployability (VA Form 21-8940) in April 2016, wherein she reported that she last worked full-time in February 2016. However, at her March 2020 Board hearing, the Veteran reported that she worked part-time in 2018 and 2019. Additionally, the Veteran’s February and June 2018 VA treatment records note that she continued to work, and a September 2018 VA treatment record indicates that she worked fulltime as a massage therapist. Therefore, it is unclear as to when the Veteran ceased working. As eligibility for a TDIU is contingent on her ability to obtain and maintain substantially gainful employment, clarification of the Veteran’s employment history is required. Therefore, the claim must be remanded in order to request that she submit an updated VA Form 21-8940 and report specific start and end dates for each employer. Thereafter, the AOJ should contact the employers identified by the Veteran and ask them to complete VA Form 21-4192, or other appropriate form, detailing the dates of the Veteran’s employment and the reasons that she stopped working. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he complete and return a VA Form 21-8940, listing her complete employment history, to include specific start and end dates for each employer, any dates of self-employment, and income from all positions held. (A) After receiving a response from the Veteran in connection with the directive above, contact the Veteran’s employers, and ask them to complete and return VA Form 21-4192, or other appropriate form, detailing the dates of the Veteran’s employment and the reasons that she stopped working. 2. The Veteran should be afforded a new VA examination to determine the current nature and etiology of her service-connected PTSD. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran’s service-connected PTSD, and the resulting impairment in her social and occupational functioning. In making these findings, if the examiner notes additional diagnoses, the examiner should attempt to measure the symptoms and limitations attributable solely to the Veteran’s service-connected PTSD and provide a rationale for such distinctions. All opinions expressed by the examiner should be accompanied by a complete rationale. 3. Afford the Veteran a VA examination to determine the current nature and severity of her service-connected back disability. The record, to include 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. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s low back disability. (B) The examiner should record the range of motion of the back observed on clinical evaluation in terms of degrees for flexion and extension. 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 her 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 is requested to indicate whether intervertebral disc syndrome related to the Veteran’s service-connected back disability is present. If so, the examiner should the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an ‘incapacitating episode’ is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (F) The examiner is also requested to indicate whether the Veteran’s back disability results in any objective neurologic impairments, to include radiculopathy of the right and/or left lower extremities, and, if so, the nature and severity of such neurologic impairment. (G) The examiner should also comment upon the functional impairment resulting from the Veteran’s back disability. 4. Schedule the Veteran for the appropriate VA examination(s) to determine the level of functional impairment her service-connected disabilities, to include tinnitus and left leg shin splints have on her ability to obtain and retain substantially gainful employment. After reviewing the file, the Veteran’s educational and occupational history and examination findings, the examiner should provide an opinion addressing what functional impairment the Veteran’s service-connected disabilities have on her ability to perform occupational tasks. (Continued on the next page)   A rationale for any opinion offered should be provided. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.