Citation Nr: 20032582 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 17-28 866A DATE: May 8, 2020 REMANDED Entitlement to a rating in excess of 10 percent for a lumbosacral strain is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities. REASONS FOR REMAND The Veteran served on active duty from June 1989 to April 1993. The Veteran seeks a rating in excess of 10 percent for his service-connected lumbosacral strain. In his June 2017 VA Form 9, substantive appeal, he asserted that his disability had worsened and requested that an additional examination be conducted. The Veteran’s last VA examination was conducted in February 2016. Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Finally, both in the Veteran’s July 2016 Notice of Disagreement and June 2017 VA Form 9, he indicated he was no longer able to work, in part, because of his service-connected lumbosacral strain. Accordingly, a claim for TDIU has been raised by the record and will be considered part and parcel of the increased rating claims currently on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, a review of the record shows that although the Regional Office (RO) did invite the Veteran to file a claim for TDIU, he was instructed to complete a VA Form 21-526EZ rather than a VA Form 21-8940 (Application for Increased Compensation Cased on Unemployability). See May 2017 Correspondence. On remand, the Veteran should be sent notice for the TDIU claim and requested to complete a VA Form 21-8940, which addresses information regarding his occupational and educational history and is helpful to adjudicate entitlement to a TDIU. The matters are REMANDED for the following actions: 1. Provide the Veteran with appropriate notice in connection with the claim for TDIU. Specifically, he should be sent a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and a VA Form 21-4198 (Request for Employment Information in Connection with Claim for Disability Benefits), and ask him to complete and return these forms. 2. Obtain the Veteran’s VA treatment records for the period from February 2017 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain. The Veteran’s claims file should be reviewed, and all indicated studies should be performed. The examiner should then provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.