Citation Nr: 21003572 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-07 061A DATE: January 22, 2021 REMANDED The issue of ncreased ratings for residuals of a thoracic spine fracture at T3-T5 (hereinafter a thoracic spine disability), rated as 10 percent disabling prior to March 11, 2014, and rated as 20 percent disabling thereafter, is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1972 to October 1975 and August 1980 to May 1986. The July 2008 rating decision that is the subject of the appeal denied an increased rating and continued the 10 percent rating. The RO issued a July 2015 rating decision in which it increased the rating to 20 percent effective March 11, 2014. Since this increase in rating did not date back to the date of the claim, there are two time periods to consider. The Board issued a decision denying this appeal in July 2019. In June 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision. Entitlement to increased ratings for residuals of a thoracic spine fracture at T3-T5 (hereinafter a thoracic spine disability), currently rated as 10 percent disabling prior to March 11, 2014, and rated as 20 percent disabling thereafter. The Board remanded the claim in May 2017 and April 2018 because it found the March 2014 and October 2017 VA examinations to be inadequate. The Veteran underwent another VA examination in December 2018. The parties to the Joint Motion for Remand (JMR) found that the examination did not comply with Mitchell v. Shinseki, 25 Vet. App. 32 (2011) as the examiner did not specify at what point the Veteran experienced pain during range of motion. Consequently, the Board must remand for another examination. Additionally, the parties to the JMR found that the March 2008 VA examination, (which the Board relied on to determine the Veteran’s level of disability prior to March 2014) failed to comply with the holdings in Mitchell as well as the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The examination pre-dated these holdings. In order to comply with the JMR, the examiner should review the evidence of record and attempt to determine the Veteran’s level of functionality prior to March 2014. In so doing, the examiner should opine as to what point the Veteran experienced pain in range of motion conducted in March 2008. The examiner should also opine, to the best of his/her ability, the Veteran’s passive range of motion at that time. Entitlement to a TDIU. Previous VA examiners have determined that the Veteran’s thoracic spine disability was asymptomatic, and that the Veteran’s symptoms were limited to his lumbar spine. The parties to the JMR noted the Veteran’s statements that he has functional loss due to the thoracic spine pain. The Veteran also stated that he could not lift, carry, do sit-ups, do push-ups, run, jump, climb stairs or perform manual labor. The VA examiner who conducts the examiner should acknowledge the Veteran’s statements and determine whether any of these functional limitations are due to the Veteran’s thoracic spine disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracic spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also render opinions that comply with the holdings in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Correia v. McDonald, 28 Vet. App. 158 (2016) regarding pain during range of motion, passive range of motion, and pain with weight-bearing and without weight-bearing, for the period prior to March 2014. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Finally, the examiner should acknowledge the Veteran’s lay statements that his thoracic spine disability causes functional loss in that he has pain, could not lift, carry, could not do situ-up, push-ups, run, jump, climb stairs or perform manual labor. The VA examiner should opine whether these functional limitations are due to the Veteran’s thoracic spine disability. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.