Citation Nr: 21071486 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-54 533 DATE: November 30, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine prior to November 12, 2019, and in excess of 40 percent thereafter, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1977 to December 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a July 2021 decision, the Board remanded the claims for development following a March 2021 JMR. After review of the record, additional remand is necessary. Finally, the record before the Board can reasonably be construed to include a request for a TDIU; however, the RO has not yet developed this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. The Claims on Appeal are Remanded. The Veteran contends that the symptoms of the service-connected back disability are more severe than are reflected by the currently assigned evaluations. The Veteran also contends that his service-connected disabilities prevent him from maintaining substantially gainful employment. After review of the lay and medical evidence, a remand is necessary to allow the Board to make a fully informed decision. The Veteran last underwent a VA examination for the service-connected back in November 2019. Reports from the Veteran and VA treatment records associated with the claims file on remand indicate the service-connected back disability may have worsened since the last examination. Specifically, VA treatment records show the Veteran was prescribed physical therapy and that those records have not been associated with the claims file. Further, an April 2021 x-ray showed that the back disability appeared to have progressed from previous examinations. While the passage of time alone does not warrant a new examination, given the extent of treatment the Veteran has received for the back disabilities, and his complaints of worsening, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's claim for entitlement to a TDIU is inextricably intertwined with the issues of entitlement to increased ratings for the service-connected back disability, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for any lumbar spine treatment. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claim. 2. Associate any VA treatment records since April 2018 with the electronic claims file. Records from AH Navicent Outpatient Physical Therapy should also be associated with the electronic claims file. 3. After completion of the development above. Schedule the Veteran for a VA orthopedic examination to determine severity of the service-connected back disability. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's back disability. In this regard, the examiner should record the limitations of motion observed on clinical evaluation. The examiner should also opine whether the Veteran's back disability manifests in or approximates unfavorable ankylosis of the thoracolumbar spine or the entire spine. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. With regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. If the examiner is unable to estimate functional loss in terms in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran's during a period of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The VA examiner should also comment on the impact of the Veteran's service-connected disabilities, to include the back and its neurological manifestations on his ability to maintain substantially gainful employment. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.