Citation Nr: 21072394 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-05 573 DATE: December 3, 2021 REMANDED Entitlement to an initial disability rating in excess of 50 percent for major depression is remanded. Entitlement to a disability rating in excess of 10 percent for low back strain, status post S1 nerve root decompression (back disability) prior to February 11, 2019, and in excess of 20 percent thereafter, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2015 and July 2017 rating decisions by a Department of Veterans Affairs (VA) regional office. In January 2021, the Board denied the claims listed above. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a joint motion for remand in which the parties agreed the Board's decision as to these matters should be vacated and the claims remanded to the Board. 1. Entitlement to an initial rating in excess of 50 percent for major depression. The record reflects that the Veteran undergoes treatment for his service-connected major depression at a Vet Center. See October 2019 and August 2021 CAPRI. As records of this treatment are not of record, the Board finds remand is necessary so that they may be obtained and associated with the Veteran's claims file. 2. Entitlement to a disability rating in excess of 10 percent for a back disability prior to February 11, 2019, and in excess of 20 percent thereafter. The Veteran most recently underwent VA examination in February 2019; however, the examiner did not provide an estimate as to the Veteran's range of motion during a flare-up, essentially stating that such an estimate could not be provided without resorting to mere speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As this is not a sufficient explanation for not providing estimated range of motion during flare-up, the Board finds remand is warranted so that a new examination may be obtained. 3. Entitlement to a TDIU is remanded. As any allowance of the claims for increased ratings remanded herein is likely to affect the outcome of the TDIU claim, the claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, entitlement to a TDIU is remanded pending resolution of the intertwined issues. Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should also be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims for increased ratings for major depression and a back disability and for a TDIU. All identified VA records, to specifically include records of the Veteran's treatment at the Vet Center during the period on appeal, should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his service-connected back disability. The claims file should be reviewed by the examiner. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If it is not possible to provide an exact estimate of spinal range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether, during these conditions, forward flexion of the lumbar spine would be limited to greater than 30 degrees but less than 60 degrees, or to 30 degrees or less; or if the combined range of motion of the lumbar spine would be 120 degrees or less; if motion would be greater than this, that should be stated. (Continued on the next page) If this cannot be accomplished without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.