Citation Nr: 20046095 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 13-07 399 DATE: July 9, 2020 REMANDED Entitlement to an evaluation higher than 20 percent for L5-S1 spondylolisthesis, anterolisthesis, L4-L5 retrolisthesis, spondylolysis and degenerative disc disease (low back disability) is remanded. Entitlement to a total disability rating based on individual employability (TDIU). REASONS FOR REMAND The Veteran served on active duty from April 1973 to March 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent rating assigned for L5-S1 spondylolisthesis. The disability was subsequently recharacterized as L5-S1 spondylolisthesis, anterolisthesis, L4-L5 retrolisthesis, spondylolysis and degenerative disc disease. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2014. A transcript is of record. The claim was remanded by the Board in February 2015 and June 2017 for additional development. In a December 2017 rating decision, the evaluation assigned for the low back disability was increased to 20 percent effective July 10, 2017. The Board issued a decision in January 2019 that granted a 20 percent rating for the low back disability prior to July 10, 2017, denied a rating higher than 20 percent, and denied entitlement to a TDIU due to the service-connected lumbar spine disability. The Board explained that it was taking jurisdiction of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed the Board's January 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Joint Motion for Partial Remand, the parties requested that the Court vacate the January 2019 Board decision that denied a rating higher than 20 percent for the low back disability and entitlement to a TDIU. The Court granted the Joint Motion in a December 2019 Order. 1. A rating higher than 20 percent for L5-S1 spondylolisthesis, anterolisthesis, L4-L5 retrolisthesis, spondylolysis and degenerative disc is remanded. 2. Entitlement to a TDIU due to the service-connected lumbar spine disability is remanded. The Joint Motion determined that remand of the low back disability was warranted for a new examination to be conducted that complies with the requirements set forth in Correia, Sharp, and Mitchell. Updated VA treatment records should also be obtained. The claim for a TDIU is inextricably intertwined with the claim for an increased rating. Additionally, the last VA Form 21-8940 was received in 2015, and reflected the Veteran attempted to obtain employment. The Veteran should be asked to complete a VA Form 21-8940 with updated information. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since November 2017. 2. Ask the Veteran to complete another VA Form 21-8940 with updated information. 3. Schedule the Veteran for a VA examination (or telehealth interview if an in-person examination is not feasible) to determine the current nature and severity of his low back disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken and should be tested actively and passively, in weight bearing, and after repetitive use. The examiner should state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. 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. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner must also address the impact of the Veteran’s reported bed rest and use of narcotic medication on his ability to work. The examiner is directed to an April 2012 progress note (chronic back pain prevented him from getting out of the bed and caused him to miss work 8-10 days per month); a September 2012 VA examination (noting that the Veteran’s back pain flares occur about 2 times per month, during which time he requires 3-5 days of bedrest); a July 2015 VA examination (Veteran reported that his “bad back days” occur about every 10-14 days lasting for 1-3 days and he stays in bed during these episodes of increased pain); and a March 2013 private neuropsychological evaluation noting that 50 percent of the Veteran’s cognitive deficits were at least as likely as not related to his long-term narcotic pain medication use related to his back condition). 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.