Citation Nr: 21070674 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-14 147 DATE: November 24, 2021 REMANDED Entitlement to an increased rating for lumbosacral strain with degenerative changes of the lumbar spine, rated as 10 percent disabling prior to February 25, 2015, and 20 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1975 to June 1975 and from June 1978 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran's claim for an increased rating was denied by the Board in December 2019. The Veteran subsequently appealed his case to the United States Court of Appeal of Veterans' Claims (Court). In January 2021, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR), which vacated the Board's December 2019 denial of the Veteran's claim to increased rating for lumbar spine disability and remanded the claim to the Board for additional development and consideration. The matter has now returned before the Board for further appellate action. In February 2021, the Veteran's attorney requested a 90 day extension of time to submit evidence and argument. The Board granted that Motion for Extension of Time in May 2021. In June 2021, the Veteran's attorney requested a second 90 day extension of time to submit evidence and argument. The Board granted that second Motion for Extension of Time in August 2021. In August 2021, the Veteran's attorney requested a 60 day extension of time to submit evidence and argument. The Board granted that third Motion for Extension of Time in September 2021. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for entitlement to a TDIU, either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran's attorney generally asserted that the Veteran was unable to work due to his service-connected disabilities. Accordingly, in light of the Court's holding in Rice, the issue of entitlement to a TDIU has been raised by the record and is within the jurisdiction of the Board. 1. Entitlement to an increased rating for lumbosacral strain with degenerative changes of the lumbar spine, rated as 10 percent disabling prior to February 25, 2015, and 20 percent thereafter, is remanded. 2. Entitlement to a TDIU is remanded. The Veteran asserts that he is entitled to an increased rating for degenerative arthritis of the spine disability, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. The Veteran contends that the functional limitations placed on him by pain flareups due to his condition warrant a higher evaluation. Upon a thorough review, the Board finds that a remand is required to obtain an adequate opinion consistent with the January 2021 JMPR. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the Board denied the Veteran's claim to increased rating for a lumbosacral strain with degenerative changes of the lumbar spine in December 2019. However, as noted in the January 2021 JMPR, the Board's December 2019 denial relied on an inadequate VA examination. Based on the foregoing, the Board will remand this matter for a new VA examination and medical opinion. As noted above, the Board notes that the Veteran has raised the issue of entitlement to a TDIU. The Veteran does not currently meet the minimum schedular percentage criteria for a TDIU at any time during the period on appeal beginning in February 2012. 38 C.F.R. § 4.16(a). However, 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). Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Chief Benefits Director or Director of the Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board notes that a September 2021 vocational assessment opined that the Veteran was more than likely precluded from substantial employment as a result of his service-connected disabilities. As such, it should be remanded to be referred to the Director for extraschedular consideration. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for an examination to determine the nature and severity of his service-connected for lumbosacral strain with degenerative changes of the lumbar spine. The need for an in-person examination is left to the discretion of the examiner. The record, including a complete copy of this remand, and all previous VA examinations, must be made available for review in connection with the examination, and all indicated tests should be performed. All necessary tests and studies should be conducted. The examiner should take a history from the Veteran as to the progression of his disability. The examiner should test for pain on motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If such testing cannot be completed, the examiner should indicate whey this is so. The examiner should specifically address the Veteran's reports of pain causing functional limitations such as difficulty bending, climbing stairs, and driving even short distances. The examiner should also ask the Veteran to report any range of motion loss during flare-ups or following repeated use. Even if the Veteran is not experiencing a flare-up of the lumbar spine at the time of the examination, or testing is not occurring immediately following repeated use over time, the examiner must elicit relevant information regarding what functional loss exists during a flare up or after repeated use, if any. After discussion with the Veteran, and after review of the Veteran's claims file, the examiner should estimate range of motion loss during a flare-up or after repetitive use, if any. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. 3. After completion of the above directives, refer the claim to the Chief Benefits Director or the Director of the Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted at any during the period on appeal from February 29, 2012 onward. Include a full statement as to the Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.