Citation Nr: 21075351 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-34 974A DATE: December 20, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for musculoskeletal thoracic spine pain prior to May 15, 2013 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 January 1985 to December 1987, to include periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision. Procedurally, the Board granted service connection for back disability residual to thoracic area injury in a December 2013 decision. In the rating decision on appeal, the Appeals Management Center assigned an initial disability rating of 10 percent effective September 8, 2008. In May 2018, the Veteran testified at a videoconference Board hearing before the undersigned, and a transcript is of record. In July 2018, the Board remanded the issue of entitlement to an initial disability rating in excess of 10 percent for musculoskeletal thoracic spine pain for further development. During the pendency of the appeal, in an August 2019 rating decision, the evaluation of the Veteran's musculoskeletal thoracic spine pain was increased to 40 percent disabling, effective May 24, 2019. Furthermore, a claim for entitlement to a TDIU had been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (stating that a TDIU claim is part and parcel of an increased rating claim when such is raised by the record). In November 2020, the Board denied an initial disability rating in excess of 10 percent for musculoskeletal thoracic spine pain prior to May 15, 2013, granted a disability rating of 40 percent from May 15, 2013, and denied a disability rating in excess of 40 percent from May 24, 2019. In June 2021, the U.S. Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's decision that denied an initial disability rating in excess of 10 percent for musculoskeletal thoracic spine pain prior to May15, 2013 and remanded the matter to the Board. The matter returns to the Board for appellate consideration. Although the Board regrets the delay, another remand is required before the Board can issue an appellate decision. 1. Entitlement to an initial disability rating in excess of 10 percent for musculoskeletal thoracic spine pain prior to May 15, 2013 is remanded. The parties to the JMPR agreed that the Board found that the back disability manifested in painful motion but erred when it failed to address whether the Veteran's symptoms of stiffness, fatigability, and lack of endurance resulted in limited range of motion, necessitating a higher rating. Furthermore, the parties noted that the May 2009 VA examination failed to address the Veteran's range of motion during flare-ups and consider the Correia factors, as well as, failed to reconcile discrepancies identified by the Veteran in the March 2009 VA examination. See Correia v. McDonald, 28 Vet.App, 158, 170 (2016); June 2009 NOD. As such, the Board finds a retrospective opinion is warranted that adequately addresses and attempts to quantify any additional functional loss during flare ups and range of motion measurements during passive and non-weight bearing testing. 2. Entitlement to TDIU due to service-connected disabilities is remanded. Finally, because a decision on the remanded issue discussed above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, a decision on the claim for a TDIU would be premature, and a remand is also required pending resolution of the intertwined claims. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from a qualified clinician. The examiner providing the opinions must be provided access to the electronic claims file and indicate review of the file in the examination report. The claims folder and a copy of this remand in its entirety must be provided to the examiner in conjunction with the addendum opinion. The examiner is requested to review all pertinent records associated with the claims file, and the examiner must indicate on the examination report that such review was undertaken. For the period prior to May 15, 2013, the examiner should provide a retrospective opinion and attempt to quantify, using the available medical records and the Veteran's lay reports, range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's back disability could significantly limit functional ability during rest or nonmovement, movement, flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. Notably, to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. (Continued on the next page) It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to his description of reduced range of motion during flare-ups or repetitive use over time, the examiner should provide a fully reasoned explanation. 2. Readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.