Citation Nr: 21073395 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 20-29 878 DATE: December 8, 2021 REMANDED A rating in excess of 20 percent for a low back disability, characterized as degenerative disc disease and degenerative arthritis, is remanded. A rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. A rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to November 1967. The Veteran testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge in September 2021. A transcript is of record. 1. A rating in excess of 20 percent for a low back disability, characterized as degenerative disc disease and degenerative arthritis, is remanded. 2. A rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. 3. A rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is remanded. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Low Back, Neck, Right Lower Extremity Sciatic Radiculopathy The Veteran is seeking higher ratings for his low back, neck, and right lower extremity radiculopathy disabilities. At his hearing, the Veteran reported flare-ups that he stated had become worse over time. The Veteran was most recently afforded VA examinations in August 2020 to evaluate the current severity of his neck and low back disabilities, as well as any other associated neurological disabilities. Prior to August 2020, the Veteran was last afforded examinations in September of 2018. The August 2020 examination reports indicate that the Veteran's active and passive range of motion did not differ. The same reports also noted that the Veteran's range of motion did not change in weight and non-weight bearing testing. The same examination reports, however, did not indicate any discussion of the Veteran's flare-ups. The examiner reported that the Veteran did not endorse flare-ups. It is not clear if the Veteran stated this at the examination or if the examiner was simply drawing the wrong conclusion. In any instance, the evidence is clear that the Veteran experiences flare-ups and as a part of his disability picture, the severity of those flare-ups, and any additional functional or motion loss must be discussed. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, a remand is necessary for the claims on appeal to obtain updated VA examinations and opinions, for the Veteran's low back, neck, and right lower extremity radiculopathy disabilities that comply with Sharp. Id. TDIU The Veteran and his attorney raised the issue of entitlement to TDIU at the Veteran's September 2021 hearing. While a claim for entitlement to TDIU has previously been raised and denied, and the Veteran did not specifically appeal such a claim on his most recent VA form 9, the Board finds that a claim for TDIU has been raised by the record and in conjunction with his other claims for higher ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is inextricably intertwined with the Veteran's increased rating claims currently on appeal, thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. The RO should invite the Veteran to submit any evidence in support of his claims. The RO should obtain any unassociated medical records from a facility where the Veteran has received treatment and associate them with the case file. 2. Schedule the Veteran for new VA examinations to determine the current severity of his low back, neck, and right lower extremity radiculopathy disabilities. The claims folder must be made available to and be reviewed by any examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed in both active and passive motion, in weightbearing and non-weightbearing with range of motion measurements of the opposite undamaged joint. If an examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, they should clearly explain why that is so. The examiner should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups for each disability. The examiner should estimate any additional loss of motion to the best of their ability. If it is not possible to provide a specific measurement without speculation, the examiner should 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). All opinions should be accompanied by adequate reasons and bases. If an examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. In so doing, any examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Following the completion of the above development, the RO is to readjudicate the Veteran's increased rating claims for his low back, neck, and right lower extremity radiculopathy disabilities, and adjudicate his claim for TDIU. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor