Citation Nr: 21074682 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-49 304 DATE: December 16, 2021 REMANDED The claim of entitlement to an initial disability rating greater than 40 percent for lumbosacral strain with degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2008 to August 2007 and June 2008 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) which granted service connection for lumbosacral strain with degenerative arthritis, assigning a 40 percent disability rating effective December 20, 2013. The Veteran disagreed with this decision and perfected this appeal. Initially, the Veteran requested a live videoconference hearing. See August 2017 Report of General Information. However, the Veteran subsequently opt-ed out of a Board hearing in his September 2017 VA Form 9. The agency of original jurisdiction (AOJ) sought clarification and the Veteran confirmed that he wanted a videoconference hearing. See February 2018 Report of General Information. In an August 2020 Report of General Information, the Veteran was notified that his hearing was postponed; however, in a December 2020 Hearing Related correspondence the Veteran stated that he was comfortable with a telephone hearing. Then, in an October 2021 Report of General Information, the Veteran indicated that he does not wish to have a hearing. The Board recognizes the Veteran's contention that a claim for a total disability rating based on individual unemployability (TDIU) "ought to be included" in his claim for an increased rating pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). See December 2016 notice of disagreement. However, a May 2016 rating decision granted a TDIU effective March 21, 2014, the date he last worked as well as the date he met the schedular requirements for TDIU under 38 C.F.R. § 4.16. As such, the Board will not take jurisdiction of a TDIU claim at this time. The claim of entitlement to an increased rating for service-connected lumbosacral strain disability with degenerative arthritis is remanded. The Veteran contends that his service-connected back disability is more disabling than currently evaluated. Specifically, the Veteran contends that his back disability should be increased from 40 to 50 percent disabling. See December 2016 notice of disagreement. The Veteran was last afforded a VA spine examination in May 2017. Notably, during the May 2017 VA examination, the Veteran denied experiencing flares-ups of the lumbar spine. However, during a previous VA spine examination in January 2016, the Veteran did report experiencing flare-ups, described as occurring three times per month with pain so severe he does not leave the house. The Veteran further noted that he treats his flare-ups by laying down on the floor. Given the discrepancy between these findings, the Veteran should be afforded a new VA examination to reconcile these findings. Furthermore, the examiner should consider the Veteran's history of flare-ups and provide an estimate regarding functional loss caused by the Veteran's flare-ups in terms of specific ranges of motion pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). Also, while the May 2017 VA spine examination report shows range of motion findings for the spine, it does not indicate whether the findings were on either active vs. passive motion and/or in weight-bearing vs. nonweight-bearing. All of these measurements provided in degrees are necessary for the examination to be considered adequate under Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the examiner should provide the requested measurements on remand pursuant to Correia. Also, the Board notes that there are likely outstanding VA treatment records as the most recent most recent VA medical records in the claims file are dated in July 2017. Therefore, all outstanding VA treatment records should be obtained on remand. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his lumbar spine disability. After securing any necessary release, such records should be requested, to include all outstanding VA treatment records from July 2017 to the present. 2. Schedule the Veteran for a VA spine examination to determine the current severity of his service-connected lumbar spine disability. All indicated tests should be performed and all findings should be reported in detail. The examination report must include ranges of motion of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. Significantly, if range of motion testing for the lumbar spine on passive range of motion cannot be accomplished, the examiner should provide a thorough explanation as to why it cannot be accomplished. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should consider the Veteran's history of flare-ups (described during the January 2016 VA spine examination) and provide an estimate regarding functional loss caused by the Veteran's flare-ups in terms of specific ranges of motion repeated use or during flare-ups of the lumbar spine. The examiner should also assess the additional functional impairment on repeated use in terms of the degree of additional range of motion loss. In particular, with respect to flare-ups, the examiner should identify any functional loss caused by flare-ups, to include the amount of range of motion loss, if any, that is present during flare-ups. If the examination is not taking place during a flare-up, the examiner should elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and estimate range of motion loss, in terms of degrees. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.