Citation Nr: 21073100 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 07-31 518 DATE: December 7, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for degenerative joint disease with strain of the lumbar spine from June 7, 2011 is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to August 30, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1964 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2013, the Board, in pertinent part, remanded the increased rating claims for the service-connected lumbar spine disability, as well as the issue of entitlement to a TDIU for further development. In October 2018, the Board denied the increased rating claims for the service-connected lumbar spine disability. In October 2018, the Veteran file a motion of reconsideration of the Board's October 2018 decision. In August 2019, the Board denied the motion. Then, the Veteran appealed the Board's October 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court granted an April 2020 Joint Motion for Remand (JMR) vacating the Board's October 2018 decision and remanding the matter for further consideration and instructions consistent with the JMR. In December 2020, the Board granted a 40 percent disability rating, but no greater, for degenerative joint disease with strain of the lumbar spine from June 22, 2009 to June 7, 2011. The Board also remanded the issues of entitlement to a disability rating in excess of 40 percent for degenerative joint disease with strain of the lumbar spine from June 7, 2011 and a TDIU prior to August 30, 2011 for further development. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease with strain of the lumbar spine from June 22, 2009 and a TDIU prior to August 30, 2011 are remanded. The Veteran is seeking an increased rating for his service-connected lumbar spine disability. The claim was remanded in December 2020 for a VA examination to determine the severity of the claimed disability and a retrospective opinion addressing whether the Veteran experienced any additional functional loss during flare-ups, as noted in the June 2011 VA examination. The Veteran underwent a VA examination in May 2021 and an addendum report was provided in July 2021. The May 2021 report indicated that the Veteran is unable to bend forward at the waist and lift, push, pull, or carry anything without feeling like falling over. After interviewing the Veteran about the nature of the June 2011 flare-ups and reviewing the examination report, the July 2021 addendum report indicated that the Veteran experienced several difficulties such as inability to lift things, bending at the waist without the risk of falling, impaired balance, and severe pain. The examiner did not describe functional loss during flare-ups in terms of range of motion. Instead, the examiner stated that the Veteran's symptoms caused additional loss in range of motion and there was already significant decrease in range of motion. The examiner also noted that the Veteran's disability prevented him from performing any activity involving lifting, prolonged sitting, walking or driving lon distances, climbing stairs, and requires constant supervision because he is a high fall risk. During the course of this appeal the Court of Appeals for Veterans Claims (CAVC) held that this additional loss can be considered under the general Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with the loss contemplated by ankylosis, or if the Veteran's range of motion is functionally equivalent to ankylosis. See Chavis v. McDonough, No. 18-2928, 2012 LEXIS 660 (Vet. App. April 16, 2021). The Board finds that the May 2021 VA examination and July 2021 addendum report are incomplete and in light of the holding in Chavis an addendum opinion is warranted to inform the Board whether the Veteran's lumbar spine disability is functionally equivalent to ankylosis during flareups. The Board also finds that the TDIU issue is inextricably intertwined with the issue being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any unassociated VA treatment records. 2. Obtain an addendum opinion from a qualified examiner regarding the current nature of the Veteran's degenerative joint disease with strain of the lumbar spine. If and only if the examiner determines the Veteran should be given another examination (including via telehealth if an in-person examination is not possible) one should be scheduled. (Continued on the next page) The examiner is asked to offer an opinion whether the Veteran's lumbar spine range of motion and any functional loss thereof to include during flareups is functionally equivalent to ankylosis at any time period from June 7, 2011 to the present. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.