Citation Nr: 21004130 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-44 578 DATE: January 26, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to September 28, 2020, and 20 percent thereafter, for a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in February and September 2020. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to a rating in excess of 10 percent prior to September 28, 2020, and 20 percent thereafter, for a low back disability is remanded. Pursuant to the September 2020 Board remand, the Veteran was afforded a VA examination that same month which the Board finds inadequate because it is both internally inconsistent and inconsistent with the medical evidence of record, without any explanation for the examiner’s contrary findings. First, the September 2020 VA examination is internally inconsistent because it notes that there is pain causing functional loss on right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation, however, the VA examiner notes that the Veteran had full range of motion on right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. In addition, the VA examiner’s findings of full range of motion on right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation is inconsistent with prior VA examinations. Second, the September 2020 VA examiner noted that the Veteran does not have muscle spasms or guarding, however, an October 2013 VA treatment record notes there is muscle guarding and minimal spasming of the lumbar paraspinals. In addition, during the January 2019 Board hearing, the Veteran testified that he experiences muscle spasms in his back when he first gets up in the morning and when he gets up after sitting for some time. Third, the September 2020 VA examiner noted that the Veteran does not have signs or symptoms of radiculopathy. However, an October 2013 VA treatment record noted that the Veteran had occasional radicular pain in his left lower extremity, a November 2017 VA treatment record reflects that the Veteran’s medical history includes sciatica, and the February 2020 VA examiner noted that the Veteran had signs and symptoms due to radiculopathy. For these reasons remand is warranted for a new VA examination. 2. Entitlement to TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the rating assigned for the Veteran’s service-connected low back disability, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, if an in-person examination is not feasible), with a clinician who has not previously examined the Veteran, to determine the current nature and severity of his service-connected lower back disability. After reviewing the entire claims file, the selected examiner should conduct all indicated tests and studies, to include range of motion testing. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including:  frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.  Based on the Veteran’s lay statements and the other evidence of record, the examiner should 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). The VA examiner should address the Veteran’s January 2019 testimony and October 2013 VA treatment record regarding guarding and muscle spasms, as well as the October 2013 VA treatment record noting that the Veteran had occasional radicular pain in his left lower extremity, the November 2017 VA treatment record reflecting that the Veteran’s medical history includes sciatica, and the February 2020 VA examiner’s finding that the Veteran had signs and symptoms due to radiculopathy. (Continued on the next page)   The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, Associate 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.