Citation Nr: 20032701 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 14-41 088A DATE: May 11, 2020 REMANDED Entitlement to a rating in excess of 20 percent disabling for lumbar spine disability 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 April 1959 to May 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In May 2018, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In July 2018, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA lumbar spine examination. The Board notes that the requested VA examination was obtained in June 2019 and has been associated with the claims file. 1. Lumbar Spine Disability After a review of the record, the Board finds the June 2019 VA examination inadequate. During the examination, the Veteran reported constant pain in the lower back with pain rated a 5 to 6 on a scale to 10 when at rest, and 8 to 9 with activities. The Veteran denied any flare-ups with regard to his service-connected lumbar spine disability. The Veteran did report current symptoms of constant pain in his lower back with pain radiating down his legs which was sharp and severe when he walked. He also reported functional loss due to having to look for places to sit down if he walked any distance, falling due to weakness in his right leg, an inability to play golf, needing assistance putting on his socks and shoes, and having to sleep in a recliner. ROM testing revealed forward flexion to 45 degrees with pain. The Veteran was unable to perform repetitive-use testing due to heightened pain with movement. Pain and weakness were noted to significantly limit functional ability with repeated use over a period of time. However, despite noting that pain and weakness significantly limited functional ability with repeated use over a period of time, and despite the Veteran being unable to perform repetitive-use testing due to heightened pain, the examiner did not provide an estimate as to any further loss of motion following repeated use over a period of time. In this regard, the examiner stated she was unable to describe such in terms of ROM as such “cannot be accurately assessed today.” No further explanation was provided other than to reference the Veteran’s above statements as to functional loss which mainly pertained to symptoms associated with walking and his BLE radiculopathy. The examiner also noted that the Veteran did not endorse flare-ups which is separate from repeated-use over time. Accordingly, the Board finds that another VA examination is necessary to adequately determine the nature and severity of the Veteran’s lumbar spine disability. 2. TDIU Lastly, the claim for a TDIU is inextricably intertwined with the increased rating claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected lumbar spine disability. The examiner should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. Any indicated diagnostic tests and studies must be accomplished. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. Procurable data that should be considered by the examiner to include his reports of functional loss, functional loss noted by treatment providers in his treatment records, and other relevant data of record. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Then, the AOJ must readjudicate the claims on appeal, to include the claim for a TDIU. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.