Citation Nr: 21067850 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-23 669 DATE: November 5, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to May 8, 2019, and in excess of 10 percent from that date for a lumbar spine disorder is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1975 to December 1978 In November 2021, the Veteran was provided a hearing before the undersigned Veterans Law Judge (VLJ). At the hearing, the Veteran was not accompanied by his representative. He was provided the options to have his hearing rescheduled or to proceed without his representative present; the Veteran requested to proceed with the hearing and waived his right to have his representative present. Regarding the matter of the ratings assigned for the Veteran's lumbar spine disorder, while the Veteran had an appeal pending for a rating in excess of 20 percent, a May 2019 rating decision reduced that rating to 10 percent, effective May 8, 2019. The Veteran did not appeal that decision; although, in July 2021, he filed a supplemental claim as to that decision. See July 2021 VA Form 20-0995. In light of the ratings currently assigned for the Veteran's lumbar spine disorder, the issue on appeal has been recharacterized to reflect those ratings. Regarding the matter of entitlement to TDIU, the Veteran asserted at the November 2021 Board hearing that he could not work, in part, because of his service-connected lumbar spine disorder. Accordingly, the Board finds that a claim for a TDIU has been raised by the record and will be considered part and parcel of the increased rating claim currently on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to a rating in excess of 20 percent prior to May 8, 2019, and in excess of 10 percent from that date for a lumbar spine disorder is remanded. The Veteran was last afforded a VA examination to evaluate his lumbar spine disorder in May 2019. At the November 2021 Board hearing, the Veteran testified that the symptoms associated with his lumbar spine disorder had increased in severity since that time. He also contended that the May 2019 VA examination was not adequate as the examiner only focused on the radicular symptoms in his lower extremity. In light of the Veteran's contentions, the Board finds that this claim should be remanded to schedule a new VA examination. 2. Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claim remanded herein. Harris v. Derwinski, 1Vet. App.180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following action: Obtain a VA examination from an appropriate examiner to determine the current severity of the Veteran's lumbar spine disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the disability, including all objective manifestations. a) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and lack of coordination present. b) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the impairment associated with flare-up episodes or after repetitive use over time, to include: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or the extent of functional limitations. 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 range of motion caused by functional loss during a flare-up or after repeated use over time. If rendering this opinion is not possible, the clinician must provide an adequate explanation as to why. c) Range of motion testing must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible, obtain range of motion of the opposite undamaged joint. If such are not applicable, the examiner should state such along with an explanation. d) The examiner should also comment on the functional impairment caused by the Veteran's service-connected lumbar spine disorder. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.