Citation Nr: 21063659 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-46 714 DATE: October 15, 2021 REMANDED Entitlement to an initial disability rating greater than 40 percent for thoracic degenerative disc disease is remanded. Entitlement to an effective date prior to October 10, 2013 for service connection for thoracic degenerative disc disease is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to June 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2016 and July 2018 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). A May 2021 Board Hearing was held with the undersigned Veterans Law Judge. A transcript is associated with the claims file. Entitlement to an initial disability rating greater than 40 percent for thoracic degenerative disc disease; entitlement to an effective date prior to October 10, 2013 for service connection for thoracic degenerative disc disease; entitlement to TDIU are remanded. The Veteran testified his service-connected disability worsened since his most recent VA examination in July 2018. The Veteran's representative submitted additional evidence in support of the appeal in July 2021. The examiner made a statement that the Veteran should be in receipt of a 60 percent disability rating for his back but without information relevant to a diagnostic code. During the course of this appeal the Court of Appeals for Veterans Claims (CAVC) held that this additional loss can be considered under the general Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with the loss contemplated by ankylosis, or if the Veteran's range of motion is functionally equivalent to ankylosis. See Chavis v. McDonough, No. 18-2928, 2012 LEXIS 660 (Vet. App. April 16, 2021). The Board finds that the July 2018 VA examination is incomplete and in light of the holding in Chavis an addendum opinion is warranted to inform the Board whether the Veteran's lumbar spine disability is functionally equivalent to ankylosis during flareups. The Veteran also stated he received Social Security Disability benefits and that there were additional private treatment records not associated for more than 25 years. VA must attempt to retrieve those records and associate them with the claims file. Additionally, the representative requested examiner CVs. The AOJ should ask what CVs are required and attempt to obtain the information. The issue of entitlement to a TDIU is a part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, the Veteran has expressly raised the issue of entitlement to a TDIU as he filed a VA 21-8940 application and therefore the issue of entitlement to a TDIU is part and parcel of the claims for higher initial rating for thoracic degenerative disc disease and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Provide the Veteran with the proper medical release authorization necessary to obtain records from all medical providers identified by the Veteran. Request that the Veteran sign the form and return the form to VA for processing. If the Veteran returns a properly completed authorization form, obtain all relevant medical records for the Veteran from the identified medical providers. 3. Obtain the Veteran's records from the Social Security Administration. Efforts made to secure these records should be memorialized. 4. Ask the Veteran and his representative to indicate which examiners' CVs are being requested. Attempt to obtain the information regarding examiners adequately identified. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracic degenerative disc disease. 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. (a.) 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). (b.) 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 at all 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). (c.) The examiner is asked to offer an opinion whether the Veteran's lumbar spine range of motion and any functional loss thereof to include during flareups is functionally equivalent to ankylosis. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.