Citation Nr: 21066580 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-38 959 DATE: November 1, 2021 REMANDED Entitlement to a rating in excess of 10 percent degenerative disc disease (DDD), L1-5 (lumbar spine disability) is remanded. Entitlement to a rating in excess of 10 percent DDD, T8-12 (thoracolumbar spine disability) is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1977 to June 1994. The Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (Board) in August 2019 for additional development. It now returns for further appellate review. 1. Lumbar Spine Disability 2. Thoracolumbar Spine Disability The Board finds a remand is necessary for an addendum medical opinion as the examinations of record do not provide all of the necessary information to properly evaluate the Veteran's disabilities as discussed further below. The Board notes that the claims were remanded in August 2019 for a new VA examination to determine the current severity of the Veteran's lumbar and thoracolumbar spine disabilities. See August 2019 Board Remand. Consequently, a VA examination was provided for the Veteran in August 2020 for his lumbar and thoracolumbar spine disabilities. See August 2020 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). Upon review, the Board finds the May 2016 and August 2020 VA examination reports do not comply with Sharp v. Shulkin, 29 Vet. App. 26(2017), which require VA examiners to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, at 32. Although the VA examination reports reflect a positive indication of flare-ups and some information regarding the frequency and duration of such flare-ups, as well as certain types of functional impairment resulting therefrom, no estimation was provided regarding loss of range of motion during flares. Notably, the August 2020 VA examiner stated that the Veteran reported flare-ups and that he reviewed the Veteran's medical history but asserted that "I have no basis to offer additional losses of motion or function related to repetitive use during a flare-up." See August 2020 VA Back (Thoracolumbar Spine) Conditions DBQ. No additional explanation was offered. However, the United States Court of Appeals for of Veterans Claims (Court) also held in Sharp that "the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. In other words, it must be apparent that the inability to provide an opinion without resorting to speculation 'reflects the limitation of knowledge in the medical community at large,' and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. As part of this obligation, a VA examiner should identify when specific facts cannot be determined." See Sharp v. Shulkin, 29 Vet. App. 6, 33 (2017) (quoting Jones v. Shineski, 23 Vet. App. 382 (2010)). Here, as previously noted the August 2020 VA examiner did not provide any specific explanation for his inability to provide an estimated functional or range of motion loss during flare-ups as required by Sharp. Thus, in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017), a retrospective opinion is warranted to address the extent of any additional loss in range of motion during periods of flare-ups or after repeated use. See Jones v. Shinseki, 23 Vet. App. 382 (2010). See also Chotta v. Peake, 22 Vet. App. 80 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The Board notes the claims file reflects that the Veteran has been receiving treatment from the Cheyenne VA Medical Center (VAMC), as well as Rocky Mountain Regional VAMC and that records dated through March 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). 3. TDIU The Board finds the TDIU issue inextricably intertwined with the above increased rating and disability claims being remanded, as the criteria for TDIU are dependent, in part, on the Veteran's service-connected disability ratings. Consequently, as these issues are inextricably intertwined, the TDIU claim must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991)( The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.) Accordingly, the Board will also remand the issue of entitlement to a TDIU at this time. The matters are REMANDED for the following action: 1. Obtain the Veteran's comprehensive VA treatment records for the period from March 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at Cheyenne VAMC, and Rocky Mount VAMC. 2. Forward the claims file to the August 2020 VA examiner for an addendum medical opinion. If the August 2020 VA examiner is not available, please provide the claims file to a different examiner with appropriate experience in diagnosing or treating orthopedic and/or thoracolumbar spine disabilities. 3. The Veteran's entire claims file, to include a copy of this decision, should be made available to the examiner. Following a complete review of the record, the VA examiner is asked to determine if an examination of the Veteran is necessary. The examiner should provide the following opinions: 4. The examiner should review the May 2016 and August 2020 examination reports and provide the range of motion in degrees of the thoracolumbar spine. In so doing, the examiner should provide A RETROSPECTIVE OPINION of the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing FOR THE MAY 2016 AND AUGUST 2020 VA EXAMINATIONS. If unable to provide these retrospective range of motions, he should state WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. 5. The examiner should review the May 2016 and August 2020 examination reports and inquire as to periods of flare-up, and note the severity, frequency and duration of any such flare-ups for the period FOR THE MAY 2016 AND AUGUST 2020 VA EXAMINATIONS AND PROVIDE A RETROSPECTIVE OPINION AS TO THE VETERAN'S FLARE-UPS. The VA examiner should describe the additional loss, in degrees, if possible. The VA examiner should offer his or her flare-up opinion based on estimates derived from information procured from relevant sources within the claims file, including VA examination reports, VA treatment records, private treatment records, and lay statements of the Veteran. 6. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. 7. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. 8. If it is the examiner concludes that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner MUST PROVIDE THE REASONS why offering such opinion(s) is not feasible. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 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. 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. 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. 9. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.