Citation Nr: 20042313 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 08-29 754A DATE: June 22, 2020 REMANDED Entitlement to a disability rating in excess of 20 percent prior to August 18, 2010 for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the thoracolumbar spine with L4-S1 fusion is remanded Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1978 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran underwent a Board hearing in August 2010. The Veterans Law Judge (VLJ) that presided over the Veteran’s hearing is no longer at the Board. The Veteran was provided the opportunity to undergo another Board hearing, however, the Veteran did not respond. See July 2018 Board letter. The Veteran did not respond and another hearing was not scheduled. See July 2018 letter (informing the Veteran that if he did not respond to the letter within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly). The Board remanded these issues in August 2012 and June 2016. In September 2018, the Board, in pertinent part, denied the Veteran’s claims for an increased rating for his back disability prior to August 18, 2010 and a TDIU. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court vacated the Board’s September 2018 Board decision on the basis of a joint motion for partial remand (JMPR). 1. Entitlement to an increased rating for DDD and DJD of the thoracolumbar spine prior to August 18, 2010 is remanded. The Veteran contends that his back disability is more severe than was rated prior to August 18, 2010. As noted above, the Court vacated and remanded this issue in accordance with a May 2019 JMPR. The parties to the JMPR asserted that the Board relied on inadequate examinations to deny an increased rating for the low back prior to August 18, 2010. In Correia v. McDonald, the Court held that for an examination to be adequate, it must include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing positions, and, if possible, with range of motion measurements of the opposite undamaged joint. 28 Vet. App. 158 (2016). The JMPR noted that none of the VA examination reports (dated October 2006, April 2008, and June 2009) the Board relied on in its decision to deny an increased rating did not include the type of range of motion testing discussed by the Court’s holding in Correia. The Court found that Board must consider whether a retrospective opinion could have provided necessary information pursuant to Correia needed to adjudicate the case. See Chotta v. Peake, 22 Vet. App. 80 (2008). Therefore, upon remand the Board finds that a retrospective opinion is required to attempt to address the guidance provided in Correia. The JMPR further noted that the June 2009 examination failed to comply with Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court held that an examination that failed to either address functional loss during flare-ups or demarcate whether and at what point during the range of motion the Veteran experienced any limitation of motion that was attributable to pain was inadequate for adjudication. Id. The JMPR stated that the Board September 2018 Board decision failed to demonstrate that the June 2009 was compliant with Mitchell. The Board finds a retrospective examination is required to address the objective evidence of pain reported in the June 2009 VA examination. 2. Entitlement to a TDIU is remanded. The Veteran contends that his service-connected disabilities render the Veteran unemployable. In May 2019, the Court vacated the September 2018 Board decision denying entitlement to a TDIU based on a May 2019 JMPR. The JMPR found that the Board erred when it failed to explain how it interpreted the concept of sedentary work and how it figured into the Veteran’s overall disability picture and vocational history as required in Withers V. Wilkie. 30 Vet. App. 139 (2018). Further, the JMPR found it unclear whether the Board denied a TDIU on the basis that, without regard to the nonservice-connected disabilities, the Veteran’s service-connected disabilities on their own, precluded substantially gainful employment. See Prat v. Derwinski, 3 Vet. App. 269, 272 (1992). The Board finds that prior to making a determination of the Veteran’s claim for TDIU, the Veteran’s increased disability rating for service-connected low back claim must be fully developed. Because a decision on the increased rating claim for the low back could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. Further, a total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. Throughout the appellate period, the Veteran was service connected for DJD and DDD of the thoracolumbar spine, rated 20 percent prior to January 6, 2009, 100 percent from January 6, 2009 to May 31, 2009; 20 percent from June 1, 2009 to August 17, 2010, and 40 percent thereafter; chronic sinusitis rated 10 percent; gastroesophageal reflux disease (GERD) with sliding hiatal hernia rated 10 percent; migraine headaches, rated 10 percent; and a noncompensable scar on his back. The Veteran’s combined disability rating throughout the appellate period is 40 percent prior to January 6, 2009; 100 percent from January 6, 2009 to May 31, 2009; 40 percent from June 1, 2009 to August 17, 2010, and 60 percent thereafter. Notwithstanding the Veteran’s 100 percent rating from January to June 2009, the Veteran does not currently meet the schedular requirements for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Nevertheless, a Veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable on account of his service-connected disabilities. Such a TDIU claim may be submitted to the VA Director of the Compensation Service. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Additionally, the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In March 2020, the Veteran underwent a private vocational assessment. The vocational expert opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment since at least August 2009 to the present due to his thoracolumbar spine conditions, chronic sinusitis, migraine headaches, and GERD with sliding hiatal hernia. Therefore, the Board finds that this matter must be referred to the VA Director of Compensation Services to determine whether the Veteran is eligible for extraschedular TDIU. The matters are REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate medical professional to obtain a retrospective medical opinion regarding the nature and severity of the Veteran’s DJD and DDD of the thoracolumbar spine prior to August 18, 2010. The Veteran’s electronic claims file must be made accessible to the designated professional for review. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: (a.) Attempt to determine the range of motion degree in which objective evidence of pain began noted in the June 2009 VA examination. i. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for the inability to do so and note what, if any, additional evidence would permit such an opinion to be made. (b.) Attempt to determine whether the Veteran’s lumbar spine range of motion results from the October 2006, April 2008, and June 2009 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing positions. To the examiner’s best ability, the additional loss of range of motion should be described in degrees. i. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for the inability to do so and note what, if any, additional evidence would permit such an opinion to be made. (c.) Provide an opinion regarding the extent of the Veteran’s functional loss due to DJD and DDD of the thoracolumbar spine (i) after repetition over time and, (ii) during flare-ups, prior to August 18, 2010. The examiner should determine the additional functional loss he experienced during flare-ups and after repetition over time by utilizing information in the medical records or other sources available to the examiner such as the October 2006, April 2008, and June 2009 VA examination reports, and any relevant VA and private treatment records from the same period as well as any lay evidence submitted by and on the Veteran’s behalf. To the examiner’s best ability, the additional range of motion loss should be described in degrees based on that information. i. The examiner should note the Veteran did not report any flare-ups in the October 2006, April 2008, and June 2009 VA examinations ii. If the examiner is unable to provide an opinion in this case, he or she should clearly explain the basis for the inability to do so and note what, if any, additional evidence would permit such an opinion to be made. (Continued on the next page)   2. After undertaking the indicated development on remand, and pursuant to the provisions of 38 C.F.R. § 3.321 (b)(1), refer to the Director of Compensation Service (or his/her designee) the matter of the Veteran’s TDIU claim for consideration of an extraschedular TDIU rating. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.