Citation Nr: 21002489 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 11-21 321 DATE: January 13, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to August 28,2013, in excess of 60 percent from August 28, 2013 to February 5, 2016, and in excess of 40 percent from February 6, 2016, forward, for service-connected thoracolumbar spine degenerative arthritis and degenerative disc disease, is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) prior to September 29, 2015. REASONS FOR REMAND The Veteran served on active duty from November 1975 to May 1985. In May 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) at a hearing in Washington, D.C. A transcript of that hearing is of record. Most recently, in October 2019, the Board remanded the increased rating issue for the Veteran’s service-connected thoracolumbar spine degenerative arthritis and degenerative disc disease; the claims file has been returned to the Board for adjudication. In as early as August 2009, during the current appeal, the Veteran asserted that he was unemployable due, in part, to his service-connected thoracolumbar spine degenerative arthritis and degenerative disc disease. In a March 2016 rating decision, the RO granted a TDIU, effective September 29, 2015. However, entitlement to a TDIU prior to September 29, 2015, remains on appeal as part and parcel of the Veteran’s increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim of entitlement to a TDIU is part of an increased rating claim when such is raised by the record). 1. Entitlement to a rating in excess of 10 percent prior to August 28,2013, in excess of 60 percent from August 28, 2013 to February 5, 2016, and in excess of 40 percent from February 6, 2016, forward, for service-connected thoracolumbar spine degenerative arthritis and degenerative disc disease, is remanded. The Board remanded this issue in October 2019, finding that, pursuant to their September 2018 remand directives, the Veteran’s April 2019 Disability Benefits Questionnaire (DBQ) was inadequate. The Board discussed that VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment, and estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The VA examiner, in the April 2019 DBQ, described the Veteran’s flare-ups without comment as to the alleviating factors or the extent of functional impairment for such and stated that records were silent for flare-up frequency, duration, or severity of decreased range of motion in degrees, concluding that after examination of the Veteran, listening to his complete history and subjective complaints, and reviewing his treatment records, there was no basis to offer an estimate of additional losses of function or motion. It was not clear to the Board why the examiner could not estimate additional functional loss or additional loss of range of motion based on the Veteran’s statements describing the flare-ups in the examination report, or why the available information in his claims folder was not sufficient to permit such an estimate. The Board also found that the VA examiner, in the April 2019 DBQ, did not provide a retrospective opinion, as directed by the Board in the September 2018remand, concerning the severity of the Veteran’s thoracolumbar spine degenerative arthritis and degenerative disc disease for the entire appeal period, instead asserting that the reasoning provided applied to the VA examinations of record, dated in September 2008, August 2013, February 2016, and January 2018. Based on such, the Board, in October 2019, directed the RO to afford the Veteran a VA examination to determine the current severity of his service-connected thoracolumbar spine degenerative arthritis and degenerative disc disease and specifically obtain a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the September 2008, August 2013, February 2016, January 2018, and April 2019 VA examinations. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). In a December 2019 DBQ, the VA examiner provided, almost word for word, the exact same response as to the Veteran’s flare-ups, a response deemed inadequate by the Board in its October 2019 remand. Also, the VA examiner did not provide range of motion testing results for pain on weight-bearing, shown on examination, as required by Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran is already in receipt of a 40 percent rating for his service-connected thoracolumbar spine degenerative arthritis and degenerative disc disease since February 6, 2016, and such is the highest rating warranted under the applicable rating criteria without ankylosis; additional evidence as to his flare-ups or pain on additional planes of motion may thus not serve as bases for an increased rating and corrective action is not required. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Johnson v. Brown, 9 Vet. App. 7, 11 (1996). However, the December 2019 DBQ remains inadequate, the examiner did not discuss the Board’s December 2019 inquiry, its second inquiry, as to a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the September 2008, August 2013, February 2016, January 2018, and April 2019 VA examinations. On remand, the RO should obtain an addendum opinion that specifically responds to the Board’s inquiry. The most recent VA treatment records available for Board review are dated in August 2020; on remand, the RO should obtain and associate with the claims file the Veteran’s updated VA treatment records. 2. Entitlement to a TDIU prior to September 29, 2015. The issue of entitlement to a TDIU was not yet ripe for Board adjudication. The severity of the Veteran’s service-connected thoracolumbar spine degenerative arthritis and degenerative disc disease prior to September 29, 2015, has not yet been established and adjudication of the Veteran’s increased rating claim may thus impact his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present. 2. Then, forward the Veteran’s claims file to the examiner who submitted the December 2019 DBQ, or a suitable substitute and obtain an adequate addendum opinion that responds in full to the Board’s inquiry below. If any examiner determines that additional physical examination of the Veteran is required, so schedule the Veteran. The examiner must provide a complete rationale for all opinions expressed. The examiner must provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the September 2008, August 2013, February 2016, January 2018, and April 2019 VA examinations. For each examination, the examiner is asked to 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). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.