Citation Nr: 21070310 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-06 819 DATE: November 23, 2021 REMANDED The claim for higher than 20 percent prior to July 21, 2014 and 40 percent thereafter for degenerative joint disease of lumbar spine is remanded. The claim for total disability due to individual unemployability is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from February 28, 1969 to February 25, 1970, receiving an Honorable Discharge. This case comes before the Board of Veterans' Appeals (the Board) on remand from the U.S. Court of Appeals for Veterans Claims (the Court) by virtue of the Court's November 6, 2020 order granting a Joint Motion for Partial Remand (the Joint Motion). On remand, the Board must address four matters. First, the Board must address whether evidence of greater loss of range of motion or functional impairment during flare-ups supports a higher rating for the Veteran's service-connected degenerative joint disease of the lumbar spine (DJD). Second, as agreed in the Joint Motion, the Board has considered whether a retrospective medical opinion is necessary, regarding the functional impact of flare-ups during the period prior to July 21, 2014, to make a decision on the Veteran's claim for an increased disability rating. Third, the parties agreed in the Joint Motion that the February 2019 VA examiner's opinion on the matter of loss of range of motion due to use over time and a remand for a new VA medical examination is necessary. Fourth, the Veteran's 2010 claim for increased ratings for his lower back conditions, along with evidence that these conditions affected his employability, raised a claim for Total Disability due to Individual Unemployability (TDIU) that is part-and-parcel of the increased ratings claim, Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009), and neither the Agency of Original Jurisdiction (AOJ) nor the Board's previous decisions have addressed that claim. The Board concurs in all respects and remands this case to the AOJ for further development and consideration consistent with these issues. 1. Higher than 20 percent prior to July 21, 2014 and 40 percent thereafter for degenerative joint disease of lumbar spine is remanded. The Board is unable to determine, based on evidence and medical opinions currently in the record, whether increased functional impairment due to pain, repeated use, or other presentations during flare-ups more nearly approximate the next higher rating criteria. The evidence of record raises the issue of entitlement to increased rating based on additional limitations, pain, weakness, and fatigue during flare-ups. As noted by parties in their agreed upon Joint Motion, the prior Board decision did not sufficiently address whether decreased range of motion due to pain or other factors during flare-ups more nearly approximated the next higher rating. The Veteran's attorney argues that merely by considering evidence of additional functional loss during flare-ups, the Board "might have found the Veteran's functional loss approximated a range of motion of 30 (degrees forward flexion) or less." The Veteran's attorney invites the Board to draw the conclusion that the evidence of record, including evidence about the Veteran's flare-ups, leads to such a conclusion. The current state of the examinations and evidence are simply not sufficient to support such a finding. On one hand, the arguments advanced by the attorney are compelling that the Veteran's forward flexion may have been further decreased by the pain, fatigue, and weakness experienced in conjunction with a flare-up. On the other hand, the October 2014 VA examiner stated that it would be speculative to say how much the flare-ups would further restrict movement unless the restricted movement were evaluated during a flare-up. As such, this specific question is beyond the expertise of the Board given the information of record, and the Board finds a retrospective medical opinion is necessary to make a decision on the Veteran's claim for an increased disability rating regarding the functional impact of flare-ups - both prior and subsequent to July 21, 2014. The evidence in the record is insufficient for the Board to find on its own that evidence of greater loss of range of motion or functional impairment during flare-ups supports a higher rating for the Veteran's service-connected DJD. 2. Consideration of entitlement to Total Disability due to Individual Unemployability (TDIU) The Veteran's claim for increased ratings for his DJD, along with evidence of record that his back conditions affected his employability, raises a claim for TDIU under Rice. The AOJ has not yet considered whether entitlement to a TDIU is warranted. If the Board were to consider this matter in the first instance, it could potentially be prejudicial because the Veteran, in effect, would lose one bite of the apple, meaning the benefit of one level of judicial review. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the AOJ should have the opportunity to conduct any necessary development and consider whether entitlement to a TDIU is warranted. For these reasons, the Board will defer adjudication of entitlement to TDIU at this time. Based on current ratings decisions, the Veteran meets the initial eligibility requirements to received TDIU for the period beginning July 21, 2014. See 38 C.F.R. § 4.16(a). The question for consideration by the AOJ on remand, for this period, is whether the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities. Id. Based on current ratings decisions, the Veteran does not meet the initial eligibility requirements to receive TDIU for the period prior to July 21, 2014 because the combined ratings for his service-connected disabilities do not satisfy the requisite threshold. See 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service for extraschedular consideration. Id. The evidence suggests that the Veteran's physical symptoms caused by his back condition, and other conditions, precluded him from maintaining substantially gainful employment prior to July 21, 2014. In consideration of the lay evidence and medical examiners' reports, the Board finds that the facts are sufficient to warrant referral to the Director of Compensation Service for consideration of an extraschedular TDIU. The matters are REMANDED for the following action: 1. Obtain up-to-date records reflecting all VA treatment to the present day. 2. Obtain a retrospective medical opinion, considering all the evidence of record, regarding the functional impact of flare-ups during the period beginning July 23, 2010, to make a decision on Appellant's claim for increased disability rating. Additionally, the examiner is requested to review the September 2010, December 2010, and October 2014 VA examinations and provide a retrospective medical opinion (if practicable) as to whether functional ability would be additionally impacted after repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment in terms of additional range of motion loss. If the examiner is unable to provide the requested opinion, he or she must explain why. 3. Obtain a new VA examination that addresses loss of range of motion due to use over time and reconsider the claim for increased ratings for the period beginning July 21, 2014. 4. Refer the Veteran's claim of entitlement to TDIU prior to July 21, 2014 to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). A copy of the Director's decision on this claim must be included in the claims file. Note: If a change in ratings determinations changes the date on which the Veteran's entitlement to schedular TDIU, that change must be considered by the AOJ. 5. Adjudicate the claim for a schedular TDIU for the period beginning July 21, 2014. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Slabbekorn Jr, Ray 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.