Citation Nr: 20046540 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 13-22 256 DATE: July 13, 2020 REMANDED Entitlement to a disability rating in excess of 20 percent for a lumbar strain with degenerative joint disease (DJD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from February 1974 to August 1977. This case come before the Board of Veterans’ Appeals (the Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in September 2016. A transcript of that proceeding has been associated with the claims file. The Veteran was service connected for a disability diagnosed as lumbar strain with degenerative joint disease in January 1981 and was awarded a 10 percent disability rating effective August 18, 1977. In January 2004, the Veteran filed an increased rating claim for his back disability. In a March 2006 rating decision, the Veteran’s disability rating was increased to 20 percent effective July 13, 2005, the date he filed his non-initial increased rating claim. A 20 percent evaluation was assigned based on muscle spasm resulting in abnormal spinal contour. The Veteran filed a claim for an increased disability rating in excess of 20 percent for his lumbar strain with degenerative joint disease disability in September 10, 2010. Given that the issue on appeal stems from a non-initial increased rating claim, the period on appeal potentially dates back to the one year prior to the date of the non-initial increased rating claim. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Therefore, the Board has assessed and weighed the relevant evidence from September 10, 2009 forward. During the September 2016 hearing, the Veteran testified that he is unemployable in part due to his service-connected disabilities. When evidence of unemployability is submitted during the course of an appeal for an increased rating, a claim of entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran asserts that he is unemployable due to the disability currently on appeal, the issue of a TDIU is before the Board. The appeal has been advanced on the docket based upon the Veteran’s reported homeless status. 38C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2)(West 2014). The appeal was remanded by the Board in April 2017 for further development. In its remand, Board requested that the Veteran be afforded a new VA examination for his lumbar strain with degenerative joint disease because of the Veteran’s allegation of worsening of his back disability since his last VA examination in November 2013. The Board also requested that the VA obtain the Veteran’s outstanding Social Security Administration (SSA) documents and vocational rehabilitation records. In a May 2019 decision, the Board denied the Veteran’s claims on appeal. In January 2020, the parties filed a joint motion for remand (JMR) to the Court of Appeals for Veterans Claims (CAVC) requesting vacatur of the Board’s decision and remand for additional development. The parties agreed that the Board erred when it failed to comply with its April 2017 remand order. In a February 2020 order, CAVC vacated the Board’s decision and directed the Board to remand the appeal for further development in order to comply with the Board’s April 2017 remand directives. 1. Entitlement to a disability rating in excess of 20 percent for a lumbar strain with degenerative joint disease is remanded. In its April 2017 remand order, the Board instructed VA to obtain a new medical examination for Veteran’s lumbar sprain disability which tested the range of motion of the Veteran’s spine “in active motion, passive motion, weight-bearing, and nonweight-bearing.”; see also Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Board further instructed that if the examiner was unable to conduct the required testing or was to determine that such testing was not required, that the examiner “should clearly explain why that is so.” In August 2017, the Veteran was afforded a new medical opinion. However, the August 2017 examination report displays only one set of range of motion findings. It does not appear that the examiner tested the range of motion of the Veteran’s spine in active motion, passive motion, weight-bearing, and nonweight-bearing, in accordance with the Board’s April 2017 remand order. Additionally, the examination report does not include an explanation regarding whether the examiner was unable to conduct these tests or whether these tests were not required. As a result, the Board erred in relying on the August 2017 VA examination and medical opinion when issuing its May 2019 decision. Therefore, remand is warranted for the Board to obtain a medical opinion that substantially complies with its April 2017 remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. The issue of entitlement to TDIU is inextricably intertwined with the issue of entitlement to an increased rating for the Veteran’s lumbar spine disability. Where facts underlying separate matters are “intimately connected,” interests of judicial economy and avoidance of piecemeal litigation require that they be adjudicated together. Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001). Here, the Board’s determination as to the functional effects of the Veteran’s lumbar spine disability may inform the Board as to its impact on the Veteran’s employability. Thus, the issue of entitlement to TDIU must also be remanded for readjudication. The matters are REMANDED for the following action: 1. Afford the Veteran an examination by an appropriate examiner to determine the current nature and severity of his lumbar spine disability. The examiner should review the Veteran’s claims file in conjunction with the examination. Any indicated studies of diagnostic tests should be performed. The examiner should test the range of motion of the spine in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. The examiner should report the range of motion in degrees and comment on the presence and extent of any painful motion, functional loss due to pain, excess fatigability, weakness and additional disability during flare-ups. If such is ot possible, the examiner should explain why. The examiner should indicate whether the Veteran has Intervertebral Disc Syndrome which results in incapacitating episodes (i.e.., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner must also note whether there are any objective neurological abnormalities associated with the Veteran’s service-connected lumbar spine disability, including any bladder or bowel difficulties. The examiner must review the examination report for compliance with the Board’s directives. Any corrective action should be undertaken prior to recertification to the Board. 2. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by CAVC for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. White, 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.