Citation Nr: 21070959 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 08-30 732 DATE: November 29, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) also is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to June 1972 and from September 1972 to September 1988. In April 2020, the Board denied these claims, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a February 2021 Order, the Court vacated the Board's decision denying these claims and remanded them back to the Board for further development and readjudication pursuant to agreement in a Joint Motion for Partial Remand (JMPR). To this end, the Board in turn is remanding these claims back to the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). 1. Entitlement to a rating in excess of 20 percent for the low back disability is remanded. In the JMPR, the parties agreed that the August 2014 and December 2019 examinations were inadequate, and that a new examination is warranted to comply with the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016). 2. Entitlement to a TDIU also is remanded. The Veteran was last employed in 2015 and stopped working when his employment contract expired. His attorney contends that a TDIU is warranted as of January 1, 2016. The Veteran has extensive employment history as a bus driver. In the JMPR, it was agreed that the Board had failed to provide adequate reasons and bases as to why it had denied this claim. In November 2021, the Veteran's attorney submitted an October 2021 vocational assessment report by CRC Services and a September 2021 affidavit by the Veteran. However, they do not adequately reflect his limitations since 2016, from when he contends a TDIU is warranted. For example, he has stated that his wife must do all the cooking because he cannot stand for that long, that his son must do the yardwork for him, that he can walk up to 15 minutes, that he can sit for up to 30 minutes, and that he tries to avoid bending and stooping "at all costs" due to his back pain. But VA clinical records also in the file note that, in March 2017, the Veteran reported biking six miles a day, and in November 2017 he reported walking and biking three miles a day. In November 2017, he was biking up a hill when he believed he put too much pressure on his knee, and he eventually had a knee replacement in 2018, and he uses a chain saw (2018), all of which reasonably can be expected to involve stooping and/or bending and/or yardwork. Thus, it appears that his current health situation and limitations as reported in 2021, are an increase since 2017 and 2018. He also has stated that his situation has become worse over the years (see CRC Services report). The most recent VA clinical records are from November 2018 and the most recent Disability Benefits Questionnaires (DBQs) are from December 2019, so from two and three years ago. Prior to again determining whether a TDIU is warranted and, if so, the effective date, all VA clinical records from November 2018 to the present should be obtained and associated with the claims file. In his affidavit, the Veteran attested, among other things, that he has nausea a "couple times a week", vomits once every two to three weeks, has heartburn and indigestion three to four times a week, has pain, swelling, and inflammation after standing for 10 minutes or walking more than 15 minutes, that he must use cruise control while driving, that he has trouble breathing at night, that he becomes easily fatigued from his medication for congestion. In addition, while he has indicated that he has difficulty hearing people, a 2017 DBQ does not reflect that his hearing loss is sufficient to meet the requirements of 38 C.F.R. § 3.385 to be considered a "ratable" disability for VA compensation purposes. His 2021 statements indicate an increase in severity of at least some of his service-connected disabilities since the last DBQs. Thus, he should be afforded new examinations. Accordingly, these claims are REMANDED for the following action: 1. Obtain the Veteran's VA clinical records from November 2018 to the present. 2. After obtaining those additional records, schedule the Veteran for an examination to reassess the severity of his low back disability. The examiner must, if not medically contraindicated, perform and note the findings for a) active range of motion; b) passive range of motion; c) where pain begins on active range of motion; d) where pain begins on passive range of motion; e) whether the Veteran has pain on weight-bearing; and f) whether he has pain on non-weight-bearing. If the examiner is unable to perform the required testing or concludes that any required testing is not necessary, he or she must explain why that is so. The examiner also must assess the Veteran's functional loss during flare-ups, if possible, in terms of the degrees of motion lost. In doing so, the examiner must consider and discuss all procurable and assembled data, such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of flare-ups. This includes gleaning this information from other evidence in the file if, as an example, the Veteran is not having a flare up at the time of the examination. 3. Also schedule the Veteran for examination of all his other service-connected disabilities to reassess their severity and functional impact. The examiner(s) must provide a full description of the disabilities and report all signs and symptoms necessary for evaluating them under the applicable rating criteria. To this end, the examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. And, to the extent feasible, the examiner must identify all symptoms and social and occupational impairment owing to the service-connected disabilities. The examiner must discuss the Veteran's medication (including for his pain and congestion), and whether their frequency and use have side-effects (such as fatigue or sleepiness) that would significantly impact his functional ability to obtain and maintain substantially gainful employment. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.