Citation Nr: 21066763
Decision Date: 11/02/21	Archive Date: 11/02/21

DOCKET NO. 15-34 198
DATE: November 2, 2021

REMANDED

An initial increased disability rating in excess of 10 percent for osteoarthritis of the lumbar spine.

A total disability evaluation based on individual unemployability (TDIU) as a result of service-connected disabilities.

REASONS FOR REMAND

The Veteran served on active duty from October 1990 to October 2011.

The case is on appeal from a February 2012 rating decision.

The claim was last before the Board in March 2021.  At that time, the Board denied entitlement to an initial disability rating in excess of 30 percent prior to December 6, 2018, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD).  The Board also remanded the claims of entitlement to an initial increased disability rating in excess of 10 percent for osteoarthritis of the lumbar spine and to a TDIU for further development.

1. An initial increased disability rating in excess of 10 percent for osteoarthritis of the lumbar spine.

The Veteran was last afforded a VA examination in regard to his lumbar spine in August 2020.  During the examination, the Veteran reported flare-ups, but the examiner did not include findings regarding functional loss in regard to additional loss of range of motion due to flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups) or properly explain why such findings could not be offered.  Therefore, on further consideration, a remand is warranted to obtain findings in accordance with Sharp based on the historic range of motion testing to ascertain the severity of his lumbar spine disability.

2. A TDIU. 

Because a decision on the aforementioned remanded issue could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined.  Thus, a remand of the claim for TDIU is required.

In light of the remand, updated VA treatment records should be obtained.

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records dated since June 2017.

2. After completing the records development indicated above, schedule the Veteran for a VA examination

(or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to assess the severity of the service-connected lumbar spine disability.

Provide findings in regard to pain on range of motion testing and an estimation of functional loss, per Sharp.  If the examination cannot reasonably be conducted during a flare-up, the examiner should estimate the functional loss during a flare.

A complete rationale should be provided for all opinions expressed.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Becton, 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.