Citation Nr: 21000332 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-89 806A DATE: January 5, 2021 REMANDED Entitlement to an initial increased rating in excess of 10 percent prior to November 28, 2017, and in excess of 20 percent thereafter for degenerative arthritis and disc disease of the lumbar spine with intervertebral disc syndrome (low back disability) is remanded. Entitlement to an initial increased rating in excess of 10 percent prior to May 4, 2017, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 2010 to December 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. A November 2017 rating decision increased the rating for the Veteran’s low back disability to 20 percent, effective November 28, 2017. However, as such did not constitute a full grant of the benefit sought on appeal, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial increased rating for a low back disability. The Veteran seeks higher ratings for his low back disability. While the Board regrets further delay, it finds that additional development is necessary prior to adjudication. Pursuant to the Board’s November 2019 remand, the Veteran underwent a VA fee-based examination in February 2020. While the Veteran reported flare-ups of his low back condition at the examination, the Board finds it is unclear as to whether he experiences flare-ups related to his low back or flare-ups related to his right leg radiculopathy. The Veteran reported flare-ups of his low back condition if he does running or lifting and the examiner noted that pain, weakness, and lack of endurance would significantly limit the Veteran’s functional ability during flares and with repeated use over time. However, the Veteran consistently only reported functional impairment during flares related to his right leg. Specifically, he reported that during flares, pain and weakness result in his right leg giving away. Additionally, the examiner indicated that there was no loss of range of motion with repeated use over time and that the Veteran’s symptoms appear to be neurological. Thus, while the Veteran initially reported experiencing flares of his low back condition, the functional impairment he described relates to his right leg condition. See also July 2020 VA treatment record (reporting lifting away from his body, heavy lifting, and prolonged standing exacerbate the Veteran’s symptoms, including back pain). Additionally, the Veteran contends that the February 2020 examiner challenged him to go past his normal range of motion. Specifically, the Veteran reports that throughout the examination he was challenged to go outside of what he was comfortable doing. A review of the examination report shows that the examiner did have the Veteran test outside of the normal range of motion for the thoracolumbar spine, at least with regards to forward flexion, though no pain was noted on examination. See February 2020 VA examination report (noting forward flexion was from 0 to 120 degrees and noting that the examiner “challenged” the Veteran to go palm to floor). In light of the foregoing, the Board finds that the Veteran should be afforded a new VA examination on remand. Moreover, while the Veteran testified that he was not receiving disability benefits from the Social Security Administration (SSA) at the August 2019 hearing, a January 2020 SSA Inquiry Result indicates that the Veteran applied for and was denied SSA benefits. It is unclear whether these records may be relevant to the claim on appeal. Therefore, the AOJ should attempt to obtain any available, relevant records from the SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). 2. Entitlement to an initial increased rating for radiculopathy of the right lower extremity. The Veteran seeks higher ratings for his right lower extremity radiculopathy. The Board finds that this claim is inextricably intertwined with the claim for a higher rating for the Veteran’s low back disability, as the disability benefits questionnaire for the low back includes questions about related radiculopathy. Harris v. Derwinski, 1 Vet. App. 180 (1991). As a result, the examination ordered herein may reveal more severe symptomatology entitling the Veteran to a higher rating for the radiculopathy in his right lower extremity. Thus, this claim will be remanded as well. 3. Entitlement to a TDIU. The Board previously determined that a claim for a TDIU was part-and-parcel of the Veteran’s claim for an increased rating for his low back condition. As the claim for a higher rating for the Veteran’s low back disability is being remanded for further development, and its disposition may affect the determination of the claim for a TDIU, the Board finds the issues to be inextricably intertwined. Harris, 1 Vet. App. at 180. Therefore, adjudication of the claim for a TDIU is deferred. The matters are REMANDED for the following action: 1. Obtain the relevant records from the SSA. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected low back condition. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case; he or she should clearly explain why that is so. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner must still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations.   Finally, to the extent possible, the examiner should identify any symptoms and functional impairments due to the low back condition and related radiculopathy alone and discuss the effect of such on any occupational functioning and activities of daily living. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.