Citation Nr: 21069516 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-27 959A DATE: November 18, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative joint disease (DJD) of the thoracic spine is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 2003 to March 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified before the undersigned Veterans Law Judge. In January 2018, November 2018, December 2019, and December 2020, the Board remanded the appeal for further development. Of note, in August 2021 rating decisions, the Veteran was awarded a 20 percent rating for thoracic spine disability from August 5, 2011, and service connection for irritable bowel syndrome at 10 percent disabling effective August 18, 2014. 1. Entitlement to an initial rating in excess of 20 percent for DJD of the thoracic spine is remanded. The Board regrets further delay but another remand is necessary, as the August 2021 VA examination is inadequate for rating purposes. Specifically, the Board remanded the appeal for an addendum opinion estimating additional loss of motion during flare-ups, in conformity with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner was instructed to review all prior VA examination reports and the Veteran's hearing testimony, and address any additional functional limitation of the back during flare-ups in terms of additional degrees of limitation of motion. Critically, just as the previous examiner had done, rather than reviewing all examination reports and hearing testimony as instructed by the Board, the August 2021 VA examiner merely restated the September 2017 VA examination report's range of motion findings (including flexion to 60 degrees on repetition), without consideration of the other VA examination reports, to include the November 2014 VA examination where the Veteran went from forward flexion of 80 degrees to 50 degrees on repetition. As the examiner did not address all relevant evidence of record, the opinion is of no probative value, the Board's prior remand directives have not been fulfilled, and an addendum opinion is needed on remand. 2. Entitlement to a TDIU is remanded. The Veteran's entitlement to a TDIU is inextricably intertwined with the instant appeal and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Moreover, as the evidence indicates that the Veteran may currently be employed, an updated VA Form 21-8940 should be completed and returned on remand. See July 2020 VA treatment note; September 2020 VA treatment note. Any outstanding records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any private treatment records. 3. Request that the Veteran complete and return an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. Then obtain an addendum opinion from an examiner other than the July 2018/May 2019, October 2019, February 2020 and May 2021/August 2021 VA examiners, preferably a physician, to address functional loss associated with the Veteran's thoracic spine disability. No additional examination of the Veteran is necessary unless the examiner deems otherwise. The entire claims file should be made available. Considering the Veteran's reported history in the September 2011, November 2014, April 2016, September 2017, July 2018, May 2019 and October 2019 VA examination reports, as well as his October 2017 Board hearing testimony, please provide an opinion describing functional impairment of the Veteran's back disability due to flare-ups since August 5, 2011, accounting for pain, incoordination, weakened movement, and excess fatigability on use; and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. In answering this question, please consider all of the above-listed examination reports when rendering your opinion, to include the November 2014 VA examination where the Veteran went from forward flexion of 80 degrees to 50 degrees on repetition. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.