Citation Nr: 21073640 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-02 125 DATE: December 9, 2021 REMANDED The issue of entitlement to an evaluation in excess of 10 percent disabling for the period prior to July 24, 2019, in excess of 20 percent disabling prior to November 10, 2020, and in excess of 40 percent disabling thereafter, for service-connected degenerative arthritis with retrolisthesis, status post laminectomy, residual of gunshot wound (GSW), is remanded. The issue of entitlement to an evaluation in excess of 20 percent disabling for service-connected residuals of a GSW, postoperative, with weakness in the right lower extremity (RLE), to include lumbar radiculopathy, is remanded. The issue of entitlement to an evaluation in excess of 20 percent disabling for service-connected residuals of a GSW, postoperative, with weakness in the left lower extremity (LLE), to include lumbar radiculopathy, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 28, 2013, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to September 1996. In October 2017, the Veteran testified under oath at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal was previously before the Board in May 2021, at which time it was remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed in this matter. In the April 2021 appellant's brief, the Veteran's representative wrote that "[g]iven the veteran's disability picture and extend [sic] of his disabilities, an extra schedular consideration should be given for the grant of an earlier effective date of the TDIU grant, prior to February 28, 2013." The Board has added the quest for extraschedular consideration to the issue on appeal. 1. Entitlement to an evaluation in excess of 10 percent disabling for the period prior to July 24, 2019, in excess of 20 percent disabling prior to November 10, 2020, and in excess of 40 percent disabling thereafter, for service-connected degenerative arthritis with retrolisthesis, status post laminectomy, residual of GSW. 2. Entitlement to an evaluation in excess of 20 percent disabling for service-connected residuals of a GSW, postoperative, with weakness in the RLE, to include lumbar radiculopathy. 3. Entitlement to an evaluation in excess of 20 percent disabling for service-connected residuals of a GSW, postoperative, with weakness in the LLE, to include lumbar radiculopathy. 4. Entitlement to a TDIU, prior to February 28, 2013, to include on an extraschedular basis. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. Specifically, the Board finds that a new VA examination is needed. At the outset, the Board notes that the Veteran's representative contends "that even absence [sic] continuous flare he has episodes that present with additional functional limitation not addressed by VA examiner prior to final adjudication . . ." See Appellant's brief, November 2021. The Board interprets this as a contention that the October 2021 VA examination is inadequate. Without reaching the merits of the representative's specific arguments, the Board agrees that the October 2021 VA examination is inadequate and remands for the following reasons. In the May 2021 remand, the Board directed: "If pain is noted during any ROM testing, the exact point at which pain starts during ROM must be clearly noted." (Emphasis omitted). Regarding initial active ROM testing, pain is noted in forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. However, it is unclear to the Board at which point, in degrees, this pain begins. Accordingly, a new examination is needed. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board acknowledges the following DBQ instruction in the initial active range of motion testing: "If any limitation of motion is specifically attributable to pain, weakness, fatigability, incoordination, or other, please note the degree(s) in which limitation of motion is specifically attributable to the factors identified and describe." However, in the space provided following the instruction, the examiner does not identify any of these specific factors, in particular, the impact of the noted pain in forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. Accordingly, it remains unclear to the Board, if the initial active range of motion measurements reflect the point at which pain occurs as requested in the May 2021 remand. Accordingly, a new examination is needed. In addition, the Board also notes the following regarding potentially outstanding Social Security Administration (SSA) records. In April 2018, a request for records was sent to the SSA National Record Center. The Social Security number on the request matches with the Veteran's, as does the date of birth; however, the "Claimant name" is different from the name of the Veteran on appeal. In May 2018, the Veteran's representative submitted SSA records. Nevertheless, given any potential confusion surrounding the April 2018 request, and given that the Board is already remanding this matter, it asks that upon remand, a request be made using the name of the Veteran in the appeal to ensure that there are no outstanding relevant SSA records. Finally, the Board notes that the remaining issues on appeal are intertwined. Accordingly, remand is appropriate. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In addition, obtain relevant records from the SSA pertaining to any application or award of disability benefits to the Veteran. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his back disability. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion (ROM) testing for active motion, passive motion, weight-bearing, and nonweight-bearing. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the spine disability and discuss the effect of the Veteran's spine disability on any occupational functioning and activities of daily living. The examiner is asked to address the impact of the Veteran's service-connected disabilities on his employability. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. (Continued on next page) 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.