Citation Nr: 21000492 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-18 091 DATE: January 5, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to July 15, 2016, and in excess of 20 percent from November 1, 2016, for a 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 March 1988 to September 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran a disability rating in excess of 10 percent prior to July 15, 2016, and in excess of 20 percent from November 1, 2016, for his degenerative joint disease of the lumbar spine. The Board notes that a September 2016 rating decision granted the Veteran a temporary total evaluation based on convalescence for his lumbar spine disability from July 15, 2016, through October 31, 2016. A Board hearing was held in March 2019. A transcript is of record. In August 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded to afford the Veteran a new, adequate VA examination. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 10 percent prior to July 15, 2016, and in excess of 20 percent from November 1, 2016, for a lumbar spine disability is remanded. The August 2019 Board remand instructed the AOJ to afford the Veteran a new VA examination after the Board found that the July 2017 VA examiner had failed to elicit any details regarding the Veteran’s flare-ups. Indeed, the Veteran has stated that within the appellate period he has had less movement during flare-ups. See Board hearing Tr. at 7-8. A review of the evidentiary record shows that the Veteran has been afforded four VA examinations within the appellate period. See January 2015, May 2016, July 2017, and September 2020 VA examination reports. None of these examinations, to include the September 2020 VA examination report, provided measurements or impairment during flare-ups described in terms of range of motion. Indeed, the most recent examination included a narrative of flare-ups and when they occur, but the September 2020 VA examiner reported that the Veteran denied flare-ups and did not estimate the described flare-ups in terms of range of motion. Such an examination, without rationale, is not adequate for adjudicative purposes. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Thus, remand is required for a new, adequate examination. 2. Entitlement to a TDIU rating is remanded. In Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when the record raises such claim. The Veteran stated his service-connected lumbar spine disability contributes to his inability to work. See November 2015 correspondence, March 2017 VA Form 21-8940, and Board hearing Tr. at 8. Notably, the Veteran has provided some evidence of the need to utilize the Family Medical Leave Act leave, to include depleting his accrued leave and using leave without pay, and request accommodations from his employer for his lumbar spine disability within the appellate period. See November 2015 correspondence, March 2017 VA Form 21-4138, March 2017 private medical record, and April 2017 VA Form 21-4192. As the TDIU claim is premised in part on the severity of the service-connected lumbar spine disability, the issue of entitlement to TDIU is inextricably intertwined with the remanded issue. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his lumbar spine disability that are not already of record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an appropriate examination to determine the current nature and severity of his lumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-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 describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.