Citation Nr: 21063522 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 09-03 983 DATE: October 14, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbar spine arthritis prior to March 12, 2019, and a rating in excess of 20 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, including on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1968 to September 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which implemented the September 2014 Board decision and granted service connection for lumbar spine arthritis (lumbar spine disability) and assigned a 10 percent disability rating, effective January 23, 2006. In a subsequent May 2019 rating decision, the RO increased the rating of the Veteran's lumbar spine disability to 20 percent, effective March 12, 2019. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2018. A copy of the transcript has been reviewed and associated with the claims file. These matters were last before the Board in January 2021, at which time they were remanded for additional evidentiary development. 1. Entitlement to a rating in excess of 10 percent for lumbar spine arthritis prior to March 12, 2019, and a rating in excess of 20 percent thereafter is remanded. Pursuant to the Board's remand instructions, a July 2021 addendum opinion was rendered by the October 2020 examiner in order to provide an estimate of the Veteran's lumbar spine in passive range of motion. While the examiner provided this opinion, she failed to acknowledge or discuss the Veteran's November 2020 statement that he walked sideways for years pursuant to the remand instructions. Accordingly, the Board finds that an addendum opinion is warranted. Lastly, additional VA treatment records were associated with the claims file, which indicated that the Veteran's non-VA treatment records were associated with his VA VistA images. However, these VistA images are not associated with the claims file. Thus, the RO should obtain and associate these images with the claims file on remand. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, including on an extraschedular basis, is remanded. The Veteran indicated that he worked as a self-employed landscaper until December 2017. His social security records reveal that he did not have any earnings from 2017 to 2019. The Veteran's October 2020 VA examination indicated that his lumbar spine disability impacted his ability to work. Thus, the pending claim of entitlement to an initial higher rating for the Veteran's lumbar spine disability is intertwined with the present claim. From December 31, 2019, the Veteran's overall, combined rating is 70 percent. However, prior to this date, his rating is 50 percent or less. Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim must be referred to the Director, Compensation Service for the period prior to December 31, 2019. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from July 2021 to the present. 2. Obtain and associate with the claims file the Veteran's VistA images associated with his VA treatment records, including all non-VA treatment. 3. After completion of #1 and #2, forward the claims file to the October 2020 examiner who also provided a July 2021 addendum opinion and request her to respond to the following questions. If the October 2020 examiner is not available, please forward to an appropriate clinician for an addendum opinion. A VA examination is only necessary if deemed so by the examiner. The examiner should review a copy of the claims file, including a copy of this remand, and respond to the following: A. Please review the Veteran's March 2019 statement and November and August 2021 statement, by counsel, indicating that the Veteran has walked sideways for years. Does this statement change your findings contained in the October 2020 examination and July 2021 addendum opinion? Please provide a rationale to any affirmative or negative response. B. With regard to the October 2020 examination findings and July 2021 addendum opinion, how far back do these results apply, i.e., one year, two years, etc. Please note that the claim for an initial higher rating for his lumbar spine disability has been pending since January 2006. Please provide a rationale for any response, including in light of the March 2019 statement that the Veteran has walked sideways for years. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. Refer the claim for a TDIU, to include on an extraschedular basis, for the period prior to December 31, 2019, to the Director, Compensation Service, and notify the Veteran and his representative of such action. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.