Citation Nr: 21001595 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 09-03 983 DATE: January 11, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbar arthritis prior to March 12, 2019, and a rating in excess of 20 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1968 to September 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which implemented the September 2014 Board’s decision and granted service connection for lumbar arthritis and assigned a 10 percent disability rating, effective January 23, 2006. In a subsequent May 2019 rating decision, the RO increased the rating for the Veteran’s lumbar spine disability to 20 percent, effective March 12, 2019. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2018. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in March 2018 and July 2019, at which time they were remanded for additional evidentiary development. 1. Entitlement to initial rating in excess of 10 percent for lumbar arthritis prior to March 12, 2019, and a rating in excess of 20 percent thereafter is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in October 2020 by an orthopedic physician. While active range of motion testing was performed, the examiner noted that passive range of motion was not performed, stating that it was not feasible to perform in a safe and reasonable manner. However, the examiner failed to review the record and provide an estimate of any additional loss in passive range of motion. Accordingly, the Board finds that an addendum opinion is warranted on remand. Furthermore, the Veteran, by counsel in a November 2020 letter, indicated that he received treatment from Dr. A.W. for his lumbar spine disability from December 2018 to the present and had requested the records. However, the records have not been obtained and associated with the claims file to date. Thus, the RO should attempt to obtain these records on remand. Lastly, in a November 2020 statement, the Veteran indicated that he was receiving benefits from the Social Security Administration (SSA). It is unclear if is receiving relevant disability benefits from the SSA. Thus, the Board finds that the RO should request any SSA disability records, if applicable, on remand. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran submitted a TDIU application and indicated that he was self-employed as a landscaper from December 2012 to December 2017. Furthermore, he submitted employment verification indicating that he was a self-employed landscaper from December 2007 to December 2017. In a November 2020 statement, the Veteran indicated that he earned less than marginal employment. Given that the present claim for the Veteran’s lumbar spine disability has been pending since January 2006, the Board finds that the RO should request an updated TDIU application regarding his employment from January 2006 to the present. In addition, the RO should request documents pertaining to his income from 2006 to the present. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from October 2020 to the present. 2. Ask the Veteran to identify the treatment from Dr. A.W. and furnish the appropriate release for the medical records. If he fails to furnish the necessary release, he should be advised to obtain the records and submit them to the VA. 3. Contact the SSA and request that it provide documentation of the Veteran’s award of disability benefits, if applicable, and copies of all records developed in association with the decision for incorporation into the record. 4. After completion of #1, #2, and #3, forward the claims file, including a copy of this remand, to the October 2020 examiner for an addendum opinion regarding passive range of motion testing of the lumbar spine. The examiner should conduct a review of the record and provide an estimated passive range of motion. Any estimated decreased range of motion or pain in passive range of motion should be noted in terms of degrees. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner deems an examination necessary, one should be scheduled. If the October 2020 examiner is unavailable, an examination or opinion should be provided by an orthopedic physician. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should conduct a review of the record, including the November 2020 argument and statements by the Veteran. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. Provide the Veteran with the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and instruct him to complete this form with regard to his employment for the period from January 2006 to the present. In addition, request that the Veteran submit evidence which details his income during this appeal, to include copies of his social security statement of earnings, W2 Forms, tax returns, etc. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.