Citation Nr: 21074637 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 96-00 763A DATE: December 15, 2021 REMANDED Entitlement to an initial disability rating in excess of 40 percent for lumbar disc disease with a history of laminectomy (low back disorder) from October 8, 2004, (exclusive of the period in 2009 when a temporary total evaluation was assigned pursuant to 38 C.F.R. § 4.30) is remanded. Entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2009, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 1, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1990 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this case has a complex procedural history which was adequately reported in the Board's April 2021 remand decision. As part of the April 2021 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain updated VA treatment records for the Veteran, afford the Veteran a VA examination for his low back disorder, obtain an opinion regarding the Veteran's low back period since October 8, 2004 to determine whether there was pronounced symptoms of intervertebral disc syndrome (IVDS), and lastly, obtain an opinion regarding whether the Veteran at least as likely as not required convalescence from his May 2009 lumbar surgery beyond October 31, 2009. Taking each remand directives in turn, during the May 2021 Supplemental Statement of the Case (SSOC), the Veteran's VA treatment records from West Palm Beach VAMC for the period from March 31, 2020 to May 18, 2021 were reported to have been obtained by the AOJ. However, a review of the record is absent of any updated treatment records from West Palm Beach VAMC. Next, the Veteran was afforded a May 2021 VA examination for his low back, with an accompanying opinion regarding whether the Veteran's low back disorder since 2004 showed reports of pronounced symptoms of IVDS. The examiner also provided an opinion regarding convalescence. In that opinion, the examiner noted that it was impossible to state an opinion without speculation if the Veteran needed more time to convalescence beyond the date of the October 31, 2009 and to provide an alternate date of release. Unfortunately, the latter opinion is incomplete as the examiner failed to provide a complete rationale to support this finding. Regretfully, as there was not substantial compliance with some of the remand directives, another remand is necessary to obtain the Veteran's treatment records from West Palm Beach VAMC and to obtain an addendum VA medical opinion regarding the Veteran's convalescence period for his lumbar surgery from May 2009 beyond October 31, 2009. Finally, because the claim for a TDIU is inextricably intertwined with the evaluation of the low back, a remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran required convalescence from his May 2009 lumbar surgery beyond October 31, 2009. A date of release from convalescence should be identified. A complete rationale for any opinion expressed should be provided, to include if the examiner determines that an opinion cannot be provided without resort to speculation. 3. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.