Citation Nr: 21003643 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-25 366 DATE: January 22, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran had active service from August 1984 to December 1986. When this case was previously before the Board in July 2017, the above-noted issue was remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND In the course of the July 2017 remand, the Board instructed the RO to conduct all indicated development necessary to properly adjudicate the claim for entitlement to a TDIU rating. Initially, the Board notes the RO has attempted to obtain the Veteran’s Vocational Rehabilitation records; however, to date these records have not been secured. Further, by way of a recent VA Form 21-0820 the Veteran reported additional records are available at the Robley Rex VAMC, which have also not yet been obtained. Pursuant to 38 C.F.R. § 3.159 (c)(2), VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency. Since these records may provide favorable evidence to support the Veteran’s claim, they must be obtained. Additionally, the Board notes the Veteran underwent VA examinations to assess his lumbar spine disability in July 2018 and October 2019. The examiner failed to provide complete functional assessments, to include passive and non-weight bearing assessments, and also failed to provide an assessment of the Veteran’s disability during flare-ups. Though the examiner found passive range of motion was not appropriate, she failed to explain why such assessment was contra-indicated. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. While the spine is not a paired joint such that range of motion measurements for the opposite undamaged joint are not necessary, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. Further, in the July 2018 examination, the examiner stated the Veteran’s lumbar spine disability did not cause any functional impairments; however, in the subsequent October 2019 examination, the examiner indicated his disability would impact upon his ability to work. Unfortunately, the examiner failed to provide concrete examples of the Veteran’s limitations, or comment on the effect his medications have on his ability to work. As such, the Board finds a new VA examination is also necessary in order to elicit all information required to fully assess the above-noted claim. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to include the above-noted missing Vocational Rehabilitation and VAMC treatment records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to fully assess the severity of the Veteran’s service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of any flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Obtain an assessment of the occupational effects caused by the Veteran’s service-connected disabilities. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must also comment on the impairments any medications taken for his service-connected disabilities may cause. An estimation in measurements such as time and distance, with respect to standing, sitting, or walking limitations would be of great assistance. The examiner must discuss and consider the Veteran’s competent lay statements. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran’s service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.