Citation Nr: 21065946 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 12-17 164 DATE: October 28, 2021 REMANDED Entitlement to an evaluation in excess of 40 percent for post back surgery syndrome, to include chronic muscular strain superimposed on post-operative scar and degenerative instability, is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) prior to March 27, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2014. A transcript is of record. The Board remanded the case for further development in November 2014, July 2017, and May 2018. Following the most recent remand, the Veteran was afforded a VA examination in January 2021. However, the examiner did not provide the range of motion findings for active motion, passive motion, weight-bearing, and nonweight-bearing. Such findings are required under Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, a remand is needed to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). In addition, the Board notes that a retrospective opinion was not obtained regarding the combined impacts of the Veteran's service-connected disabilities prior to March 27, 2018, as directed in the prior remand. Moreover, the claim for entitlement to TDIU is inextricably intertwined with the increased rating issue being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected back disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected post back surgery syndrome, to include chronic muscular strain superimposed on post-operative scar and degenerative instability. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In providing the requested findings, the examiner is asked to identify the specific symptomatology due solely to the Veteran's service-connected back disability, as opposed to any nonservice-connected disorder, such as his post-service industrial accident. See e.g. March 2015 and January 2021 VA examination reports. If is not possible to separate such symptomatology, the examiner should so indicate in his report. The examiner should report all signs and symptoms necessary for rating the service-connected back disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine and state whether there is any ankylosis. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-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 so in the report. The examiner should discuss any functional impairment that occurs during flare-ups, including any additional limitation of motion due to the Veteran's service-connected disability. To the extent possible, he or she should address the frequency, duration, characteristics, and severity of flare-ups (through an examination, review of the medical records, and/or history provided by the Veteran). If the examiner cannot otherwise opine as to functional loss, he or she must provide an explanation. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner should also state the total duration of incapacitating episodes over the past 12 months and identify any neurological manifestations of the service-connected disability. If there are any neurological manifestations attributable to a nonservice-connected disability, the examiner should explain in the report. In addition, the examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. See August 2010, March 2015, January 2018, November 2019, and January 2021 VA examinations. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should request a retrospective medical opinion regarding the impact of the combined effects of the Veteran's service-connected disabilities prior to March 27, 2018. Prior to March 27, 2018, the Veteran was service-connected for coronary artery disease; post back surgery syndrome, to include chronic muscular strain superimposed on post-operative scar and degenerative instability; type II diabetes mellitus; chronic synovitis of the right knee with degenerative arthritis; right lower extremity peripheral neuropathy, to include radiculopathy; and bilateral peripheral neuropathy of the upper extremities. The examiner should address how the Veteran's service-connected disabilities alone resulted in functional impairment prior to March 27, 2018, and comment on the Veteran's ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could have performed when only his service-connected disabilities are considered, and if so, what type. In rendering this opinion, the examiner should address the August 2010 VA examination report noting that the Veteran would not be able to find work because of a variety of factors, which included "back trouble." He or she should also identify any effects of prescribed medications that the Veteran took for service-connected disabilities prior to March 27, 2018. 4. The AOJ should review the VA examination report and medical opinion to ensure compliance with this remand. If the examination or opinion is deficient in any manner, the AOJ should implement corrective procedures. 5. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.