Citation Nr: 21064925 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 18-18 845 DATE: October 22, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent, prior to February 14, 2019, and in excess of 20 percent thereafter, for a lumbosacral strain 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 February 2012 to February 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in December 2018 and April 2021. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent, prior to February 14, 2019, and in excess of 20 percent thereafter, for a lumbosacral strain is remanded. Pursuant to the April 2021 Board remand, the Veteran was afforded a VA examination in July 2021, which the Board finds to be inadequate. The VA examiner noted that the Veteran did not report flare-ups, but rather, that the Veteran stated that he experiences constant moderate pain that gets worse with certain movements, such as twisting or bending. Without further explanation, it appears to the Board that the Veteran is describing flare-ups that occur depending on his movements. This is consistent with prior VA examinations of record which reflect that the Veteran experiences flare-ups. In addition, the July 2021 VA examination report reflects that the Veteran's back disability is progressively worsening. However, the range of motion measurements recorded in the July 2021 VA examination show increased range of motion in both forward flexion and left lateral flexion since the July 2019 VA examination and increased range of motion in forward flexion since the October 2019 VA examination, which would appear to reflect improvement, not worsening. Finally, the VA examiner did not address the Veteran's April 2019 VA treatment record which reflects that the Veteran's back pain occasionally radiates into his right hip. Thus, without further explanation, the July 2021 VA examination appears to be internally inconsistent and inconsistent with prior medical evidence of record. For these reasons, remand for a new VA examination is warranted. 2. Entitlement to TDIU is remanded. The June 2017, December 2018, October 2019, and July 2021 VA examiners stated that the Veteran's back disability impacts his ability to work. The Veteran has also contended as much during the period on appeal. The Court of Appeals for Veterans Claims has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). As the record reflects some evidence of unemployability, the issue of entitlement to TDIU is part of the claim for an increased evaluation for a back disability and is properly before the Board on appeal. The issue of entitlement to TDIU is inextricably intertwined with the increased rating claim for the Veteran's service-connected back disability, and thus 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), preferably with a clinician who has not previously examined the Veteran, to determine the current nature and severity of his service-connected 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 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 and 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 over time 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). (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; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. 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.