Citation Nr: 21073572 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-33 713 DATE: December 9, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to May 29, 2015 and a rating in excess of 20 percent prior to June 28, 2021 for degenerative arthritis of the spine and a rating in excess of 40 percent thereafter for degenerative arthritis of the spine with spinal stenosis and IVDS is remanded. Entitlement to an initial compensable rating for bilateral hearing loss prior to June 30, 2021 and in excess of 10 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service - connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1982 to October 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a May 2017 rating decision increased the rating assigned to the Veteran's degenerative arthritis of the spine to 20 percent effective May 29, 2015. A June 2021 rating decision subsequently increased that rating to 40 percent effective June 28, 2021 for degenerative arthritis of the spine with spinal stenosis and IVDS. The June 2021 rating decision also increased the Veteran's evaluation for bilateral hearing loss from noncompensable to 10 percent effective June 28, 2021. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript is of record. This case was remanded in April 2021 for further development. 1. Entitlement to an initial rating in excess of 10 percent prior to May 29, 2015 and a rating in excess of 20 percent prior to June 28, 2021 for degenerative arthritis of the spine and a rating in excess of 40 percent thereafter for degenerative arthritis of the spine with spinal stenosis and IVDS is remanded. At his February 2021 virtual Board hearing, the Veteran testified that his back muscles freeze up and that he is not able to move his back very much. The June 2021 VA Back Conditions Examination and private treatment records documented that the Veteran experiences flareups of his back disability. During the course of this appeal the Court of Appeals for Veterans Claims (CAVC) held that 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, 2021 LEXIS 660 (Vet. App. April 16, 2021). The Board finds that given the description of loss of functionality experienced by the Veteran during back flare ups, the June 2021 VA examination is incomplete and in light of the holding in Chavis an addendum opinion is warranted to inform the Board whether the Veteran's low back disability has been functionally equivalent to ankylosis during flareups during the appeals period. 2. Entitlement to an initial compensable rating for bilateral hearing loss prior to June 30, 2021 and in excess of 10 percent thereafter is remanded. At his April 2019 VA Hearing Loss and Tinnitus Examination, the examiner noted that the Veteran was a fulltime hearing aid user who was fitted with hearing aids by the Loma Linda VA Medical Center (VAMC) Audiology Department in Loma Linda California in 2016 or 2017. The Board finds that there has not been substantial compliance with the April 2021 remand directive to obtain all outstanding VA treatment records and associate them with the claims file. Accordingly, remand to obtain VA treatment records from the Loma Linda VAMC is warranted. 3. Entitlement to a total disability rating based on individual unemployability due to service - connected disabilities (TDIU) is remanded. The Board finds that the TDIU issue is inextricably intertwined with the issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand the AOJ should again provide notice to the Veteran of what is required to substantiate a claim for TDIU, and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran is advised that the Board will consider whether the claim for entitlement to TDIU is abandoned if the VA Form 21-8940 is not filled out and returned. The matters are REMANDED for the following action: 1. Obtain any unassociated VA treatment records to specifically include treatment records from Loma Linda VAMC from 2016 to present. 2. Obtain an addendum opinion from the June 2021 VA examiner or if that examiner is not available another qualified examiner regarding the current nature of the Veteran's low back disability. 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. (a.) The examiner is asked to elicit and/or report information from the Veteran regarding the frequency of his low back flare ups. (b.) The examiner is asked to offer an opinion whether the range of motion of the Veteran's low back and any functional loss thereof to include during flareups is functionally equivalent to ankylosis and when such functional loss began. 3. Complete any appropriate notice and assistance for the claim for TDIU. Request that the Veteran complete and submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Advise the Veteran that the Board will consider whether the claim for entitlement to TDIU is abandoned if the VA Form 21-8940 is not filled out and returned. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.