Citation Nr: 21001185 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-34 357 DATE: January 7, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a back disability prior to June 2, 2016, is remanded. Entitlement to an effective date prior to January 12, 2016, for a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1958 to March 1961 and from December 1968 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of the Waco, Texas, Regional Office of the Department of Veterans Affairs (VA) in Saint Petersburg, Florida. In August 2018, the Board denied entitlement to a rating higher than 10 percent for a back disability, prior to June 2, 2016. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In May 2019, the Court granted the Parties’ Joint Motion for Remand; vacated the August 2018 Board decision that denied entitlement to a rating higher than 10 percent for a back disability prior to June 2, 2016; and remanded the claim to the Board for additional action consistent with the Joint Motion for Remand. In October 2019, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction for additional development of the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c), 38 U.S.C. § 7107(a)(2). 1. Entitlement to a rating in excess of 10 percent for a back disability prior to June 2, 2016 is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to a rating in excess of 10 percent for a back disability prior to June 2, 2016. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board’s October 2019 remand requested a retrospective medical opinion that considered functional limitation on flare up and whether testing was possible for limitation of active motion, passive motion, weight-bearing motion, and nonweight-bearing motion prior to June 2, 2016. A close review of the subsequent VA back examination in December 2019 and addendum opinion in October 2020 shows that the VA examiner did not comply with the Board’s remand request as the VA back examination and addendum opinion do not appear to be retrospective in nature but rather assesses the current severity of the Veteran’s disability. The December 2019 VA back examination and October 2020 addendum opinion also did not consider functional limitation on flare up, active motion, passive motion, weight-bearing motion, and nonweight-bearing motion, prior to June 2, 2016, expressed in degrees of range of motion, as requested. Therefore, the Board finds that all remand instructions were not completed. Consequently, the Board cannot consider the development requested to be substantially accomplished, and the claim must again be remanded to complete the requests in the October 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to an effective date prior to January 12, 2016, for a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The issue of the effective date for the award of a TDIU is inextricably intertwined with the issue of an increased rating for the service connected back disability being remanded and therefore must also be remanded. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Forward the claims file to an appropriate VA examiner for a retrospective medical opinion regarding the severity of a service-connected lumbar spine disability from August 21, 2008, to June 2, 2016. The examiner must review the claims file, to include this Remand, the Board’s October 2019 Remand, and the May 2019 Joint Motion for Remand, and should note that review in the report. The examiner should identify all symptoms shown from August 21, 2008, to June 2, 2016, and address any resulting occupational impairment as a result of the disability. The examiner should discuss the frequency and severity of any recurring attacks of intervertebral disc syndrome during the course of the appeal and the limitation of lumbar spine motion, with consideration of any other factors that caused functional impairment such as weakened motion, painful motion, fatigability, incoordination, or excess motion. The examiner should estimate the degrees of range of motion on active and passive motion, and for weight-bearing and nonweight-bearing. The examiner should estimate the Veteran's functional loss due to flare ups and after repeated use over time based on all the evidence of record, including the Veteran's lay information during the period of review prior to June 2, 2016. The Board recognizes the difficulty in making such determinations, but requests that the examiner provide a best estimate based on the examination findings and statements of the Veteran. The examiner should state whether or not there was any ankylosis of the spine or any part of the spine from August 21, 2008, to June 2, 2016. To the extent possible, the examiner should identify any symptoms due to the back disability alone and discuss the effect of the back disability on any occupational functioning and activities of daily living. The examiner should discuss the frequency and severity of any recurring attacks of any intervertebral disc syndrome from August 21, 2008, to June 2, 2016. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disability resulted in marked interference with employment at any time during the period on appeal. 3. Then, obtain a medical opinion regarding the impact of all the service-connected disabilities on the Veteran's ability to obtain and maintain employment prior to June January 12, 2016. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, consistent with his training and education, but not considering age, prior to January 12, 2016. If the Veteran was felt capable of work, the examiner should state what type of work and what accommodations would have been necessary due to the service-connected disabilities. If it is found that the service-connected disabilities precluded employment, the examiner should state a date on which the Veteran became unable to work due to the service-connected disabilities and should provide a rationale for that date. A complete rationale must be provided for all opinions. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.