Citation Nr: 21066568 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-41 379 DATE: November 1, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a service-connected thoracolumbar spine disorder prior to March 9, 2017, is remanded. Entitlement to a rating in excess of 20 percent disabled for a service-connected thoracolumbar spine disorder since March 9, 2017, is remanded. Entitlement to a rating in excess of 10 percent for a service-connected cervical spine disorder prior to February 5, 2021, and in excess of 20 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from May 1987 to June 2007. In a December 2018 decision, the Board declined to grant entitlement to a rating in excess of 10 percent for a cervical spine disability, and declined to grant entitlement to a rating in excess of 10 percent for a thoracolumbar spine disability prior to March 9, 2017, and in excess of 20 percent thereafter. An April 2020 Court of Appeals for Veterans Claims (CAVC) memorandum decision vacated the Board's decision regarding these issues and remanded it to the Board for reconsideration of the Veteran's claim. In December 2020, the Board remanded these claims to the Agency of original Jurisdiction (AOJ) for further adjudication. In March 2021, the AOJ granted entitlement to a rating of 20 percent disabled for a cervical spine disorder effective February 5, 2021. These issues are, therefore, once again before the Board. The Board further notes that a December 2018 Board decision upheld a rating reduction for the Veteran's thoracolumbar spine disorder from 20 percent to 10 percent effective April 7, 2016. The appeal of this issue was specifically abandoned by the Veteran and dismissed by CAVC in April 2020. Therefore, the issue currently before the Board is entitlement to a rating in excess of 10 percent from April 7, 2016, to March 9, 2017, and in excess of 20 percent thereafter, for the thoracolumbar spine disorder. 1. Entitlement to a rating in excess of 10 percent for a service-connected thoracolumbar spine disorder prior to March 9, 2017 is remanded. 2. Entitlement to a rating in excess of 20 percent disabled for a service-connected thoracolumbar spine disorder since March 9, 2017, is remanded. 3. Entitlement to a rating in excess of 10 percent for a service-connected cervical spine disorder prior to February 5, 2021, and in excess of 20 percent thereafter, is remanded. 4. Entitlement to a TDIU rating is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement to service connection for headaches and sinusitis. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2020, the Board remanded the claim of entitlement to increased ratings for the Veteran's thoracolumbar spine disorder and cervical spine disorder, specifically requesting the AOJ to obtain VA examinations for both issues that completed range of motion testing and instructing the examiner to "indicate how far back (i.e., one year, two years, etc.) these results would apply." The AOJ obtained March 2021 and June 2021 VA examinations for both issues. Additionally, an August 2021 VA addendum opinion indicated that the results of these examinations covered the period "since the last Back DBQ in March 2017." The August 2021 VA examiner did not provide a rationale as to why the current results apply back to March 2017 rather than April 2016. No addendum provided an opinion regarding the cervical spine issue. The Board notes that the March 2017, March 2021, and June 2021 VA examinations are labelled "Back" for the thoracolumbar spine and "Neck" for the cervical spine. It is unclear whether the August 2021 addendum opinion was also intended to apply to the Veteran's cervical spine disorder. The Board also notes that the VA examiner opined that, during flares, the Veteran's forward flexion would be limited to 70 degrees based on the Veteran's "subjective report of ROM and pain during flares." However, VA clinic records in 2015 reflected the Veteran's lumbar range of motion to be flexion was limited to less than 40 degrees "secondary to pain/grimace." This relevant evidence should be considered. A remand is needed to obtain a clarifying VA medical opinion regarding how far back the range of motion testing for the Veteran's thoracolumbar and cervical spine disorders reflected in the March 2021 and June 2021 VA examinations apply. The Board's December 2020 remand also instructed the AOJ to provide the Veteran with VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and request the Veteran to complete it. The AOJ does not appear to have completed this instruction. The matters are REMANDED for the following action: 1. Obtain VA treatment records since May 2021 and associate them with the claims file. 2. Provide the Veteran with the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and instruct him to complete and return this form. In addition, request that the Veteran submit evidence detailing his wage earnings in 2016 and 2017, to include, copies of his social security statement of earnings, W2 Forms, tax returns, etc. 3. Forward the Veteran's claims file to the June 2021 VA examiner or another appropriate examiner for an opinion indicating how far back (i.e., one year, two years, etc.) the cervical and thoracolumbar spine range of motion measurements during flares in the March 2021 and June 2021 VA examinations would apply. Provide a rationale for the opinion offered. The examiner should consider the entirety of the record including VA clinic records in 2015 reflected the Veteran's lumbar range of motion to be flexion was limited to less than 40 degrees "secondary to pain/grimace." T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.