Citation Nr: 21069131 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 13-09 301 DATE: November 17, 2021 REMANDED The issue of entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to August 6, 2014, and in excess of 20 percent disabling for the period thereafter, for service-connected lumbar spine arthritis with lumbar strain, to include on an extraschedular basis, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1986 to February 1987, May to November 2000, December 2001 to August 2002, and from June 2008 to June 2009. In March 2017, the Veteran and A.A. testified under oath at a travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In March 2021, the remaining issues on appeal were remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed in this matter. In the September 2021 appellant's post-remand brief, the Veteran's representative raised the issue of extraschedular consideration. The issues on appeal have been recharacterized accordingly. The Board acknowledges that while the correct representative was listed on the March 2021 Board remand, it appears that the wrong address was used. Nevertheless, as noted above, the Board is in receipt of a September 2021 appellant's post-remand brief from the Veteran's representative. Accordingly, the Board will assume that the representative has had an opportunity to review the record and submit additional evidence or argument in support of the appeal. In addition, the Board is remanding this matter again, which will provide the Veteran and his representative further opportunity to submit evidence and argument. Accordingly, the Board finds that there is no prejudice to the Veteran in proceeding with the remand. 1. Increased evaluation for service-connected lumbar spine arthritis with lumbar strain. 2. Entitlement to a TDIU. The Board finds that a new VA examination is needed prior to final adjudication of the issues on appeal. In the March 2021 remand, the Board asked that an examiner "specifically . . . provide range of motion testing (ROM) for active motion, passive motion, weight-bearing, and nonweight-bearing." (Emphasis in original). Nevertheless, the Board does not see that the April 2021 VA examination report included range of motion measurements for weight-bearing and nonweight-bearing. The Board asks that this information be provided in a new examination report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. In addition, the Board seeks the following clarification regarding flare-ups. The April 2021 VA examination report states that the Veteran "reports 10/10 level flareups of back pain that occur on average of a few times per day." However, the examination report indicates "no," in response to the question: "Does procured evidence (statements from the Veteran) suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups?" In addition, ROM measurements estimates regarding flare-ups were not provided. Accordingly, the Board asks that the Veteran be re-examined and that the impact of the Veteran's reported flare-ups be clarified, particularly regarding how they impact ROM. Similarly, the Board seeks clarification regarding repetitive use and repeated use over time. The April 2021 VA examination report states: "The veteran describes worsening of his chronic lumbar pain that results in limited tolerance for performing activities that involve repetitive bending, prolonged walking, stair climbing, or lifting loads weighing greater than 10 pounds." However, the observed repetitive use testing indicates that the Veteran is "able to perform repetitive use testing with at least three repetitions" and that there is no "additional loss of function or range of motion after three repetitions." Similarly, the report indicates that there is no "procured evidence (statements from the Veteran) [that] suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time." The Board seeks clarification upon remand. In addition, the Board seeks clarification regarding pain on active and passive ROM. The April 2021 VA examination report does not indicate pain on right and left lateral rotation for either active or passive ROM testing. However, later in the examination report under "Remarks" it states: "There are reports of pain on passive/active range of motion testing of the joints in the back . . . between 20-30° of right and left lateral rotation." The Board asks that an examiner clarify whether there is pain on right and left lateral rotation for both active and passive motion and, if so, document where this pain begins in degrees of ROM. In addition, the Board acknowledges that records regarding vocational rehabilitation, including a blank application, were added to the claim file following the March 2021 Board remand. See VA Form 28-1900, April 2021; and Correspondence, April 2021. To the extent that these documents indicate that there are outstanding vocational rehabilitation records, such records should be obtained and associated with the claim file. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding records, to include any VA and/or private treatment records, pertaining to the issues on appeal, as well as any VA vocational rehabilitation records. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his service-connected lumbar spine arthritis with lumbar strain. The claim folder, including a copy of this remand, and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. The examiner is asked specifically to provide range of motion (ROM) testing for 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 why that is so. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected lumbar spine arthritis with lumbar strain disability and discuss the effect of the Veteran's service-connected lumbar spine arthritis with lumbar strain disability on any occupational functioning and activities of daily living. The examiner should state whether or not there is any neurologic disability that is the result of the service-connected lumbar spine arthritis with lumbar strain disability. In addition, the Board seeks clarification of the following: (a) The April 2021 VA examination report states that the Veteran "reports 10/10 level flareups of back pain that occur on average of a few times per day." However, the examination report indicates "no," in response to the question: "Does procured evidence (statements from the Veteran) suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups?" In addition, ROM measurements estimates regarding flare-ups were not provided. The Board asks that the impact of the Veteran's reported flare-ups be clarified, particularly regarding how they impact ROM. (b) The April 2021 VA examination report states: "The veteran describes worsening of his chronic lumbar pain that results in limited tolerance for performing activities that involve repetitive bending, prolonged walking, stair climbing, or lifting loads weighing greater than 10 pounds." However, the observed repetitive use testing indicates that the Veteran is "able to perform repetitive use testing with at least three repetitions" and that there is no "additional loss of function or range of motion after three repetitions." Similarly, the report indicates that there is no "procured evidence (statements from the Veteran) [that] suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time." The Board seeks clarification regarding repetitive use and repeated use over time. (c) The April 2021 VA examination report does not indicate pain on right and left lateral rotation for either active or passive ROM testing. However, later in the examination report under "Remarks" it states: "There are reports of pain on passive/active range of motion testing of the joints in the back... between 20-30° of right and left lateral rotation." The Board asks that an examiner clarify whether there is pain on right and left lateral rotation for both active and passive motion and, if so, document where this pain begins in degrees of ROM. Finally, the examiner is asked to discuss the impact of the Veteran's service-connected lumbar spine arthritis with lumbar strain disability on his employability. (Continued on next page) 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.