Citation Nr: 21062158 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-18 573A DATE: October 6, 2021 REMANDED Entitlement to higher ratings for service-connected thoracolumbar spine facet arthropathy and arthritis (low back disability), currently rated 10 percent prior to July 1, 2014 and 20 percent thereafter is remanded. Entitlement to more than a 20 percent rating for service-connected right lower extremity lumbar radiculopathy is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1980 to January 1983. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2013, July 2014, and May 2015 rating decisions. The Board remanded these claims in September 2019. 1. Entitlement to higher ratings for service-connected thoracolumbar spine facet arthropathy and arthritis (low back disability), currently rated 10 percent prior to July 1, 2014 and 20 percent thereafter is remanded. 2. Entitlement to more than a 20 percent rating for service-connected right lower extremity lumbar radiculopathy is remanded. The prior remand specifically directed that a VA examiner report range of motion test results in active motion, passive motion, weight-bearing, and non-weight bearing. A review of the December 2019 examination reports obtained shows only one set of range of motion data (presumably for active motion, though it is not entirely clear). While the examiner did note that there was no objective evidence of pain with passive motion and non-weight bearing, nothing else in the report explains the absence of additional range of motion data pursuant to the prior remand orders. Furthermore, the December 2019 VA back examination report indicates no evidence of signs or symptoms consistent with radiculopathy (see p. 6 of 10) but a peripheral nerve examination (see p. 2 of 10) on the same date from the same examiner notes moderate right sciatic radiculopathy. Consequently, a remand is needed for clarification. 3. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. This matter is inextricably intertwined with the other rating issues on appeal and a final adjudication thereof must be deferred at this time. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by an orthopedist or other appropriate physician to determine the current severity of his service-connected low back disability. Based on an examination THAT INCLUDES A SUBJECTIVE REPORT DESCRIBING HIS SYMPTOMS AND HOW FUNCTIONING AND MOTION VARY WITH FLARE-UPS OR REPEATED USE OVER A PERIOD OF TIME, review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. Range of motion test results MUST BE RECORDED in ACTIVE MOTION, PASSIVE MOTION, WEIGHT-BEARING, and NON-WEIGHT-BEARING. If testing in any of these circumstances is not feasible, the examiner MUST EXPLAIN WHY. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or other subjective factors. The examiner MUST ALSO comment on or describe, to the extent possible, any noted OR REPORTED functional impairments from low back disability during flare-ups or with repeated use over a period of time. If the examiner is still unable to provide such an opinion EVEN WHILE CONSIDERING RELEVANT LAY STATEMENTS OR REPORTS, s/he MUST explain why. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. The examiner should also identify ALL NEUROLOGICAL MANIFESTATIONS of low back disability, including (but not limited to) his already service-connected right lower extremity sciatic radiculopathy. Specifically, the examiner should describe ALL NERVES INVOLVED and the severity of such involvement. Separate peripheral nerve examinations should be scheduled, if needed or appropriate, in assessing neurological manifestations of low back disability. The examiner should also comment on the expected impact of the Veteran's low back disability and associated neurological or radiculopathy symptoms on his occupational functioning, to specifically include identifying the types of work or tasks that would remain feasible despite such disabilities and those that would be precluded. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.