Citation Nr: 21065416 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 13-35 273 DATE: October 26, 2021 REMANDED Entitlement to a rating in excess of 40 percent for a lumbosacral strain is remanded. Entitlement to a total disability rating based upon unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1967 to August 1973. This matter came before the Board of Veterans Appeals (Board) on appeal from June 2011 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an April 2018 hearing. The transcript of the hearing is of record. April 2018, October 2019 and November 2020 Board decisions remanded the issues on appeal for further development. 1. Entitlement to a rating in excess of 40 percent for a lumbosacral strain The November 2020 Board remand requested a new VA lumbar spine examination, and the remand directives specifically asked that if pain was noted on range of motion (ROM) testing, the examiner should note the point pain began. A VA lumbar spine examination was provided in June 2021. However, while the examiner found pain on ROM testing, he did not note the point pain began as requested in the remand directives. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. 2. Entitlement to a total disability rating based upon unemployability (TDIU) TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). The Board notes that the Veteran's current combined disability rating is 60 percent. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of increased ratings for the lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. 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). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Akkad 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.