Citation Nr: 21075392 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-25 396 DATE: December 20, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine from November 20, 2009 to July 2, 2020 is remanded. Entitlement to a rating in excess of 40 percent for degenerative joint disease of the lumbosacral spine from July 2, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from February 1989 to February 1996, including service in Southwest Asia from January 1991 to May 1991. This appeal comes to the Board of Veterans' Appeals (the Board) from a March 2010 rating decision in which the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim for an increased rating for his service-connected degenerative joint disease of the lumbosacral spine. The AOJ assigned a 20 percent rating with an effective date of November 20, 2009. The Veteran participated in a hearing with the undersigned Veterans Law Judge in March 2016. A transcript of this hearing is of record. Following the March 2016 hearing, the Board remanded the Veteran's claim in December 2017, as the Veteran's testimony suggested that his degenerative joint disease of the lumbosacral spine had worsened since his most recent Department of Veterans Affairs (VA) examination. He received new VA examinations in August 2018, December 2019, and March 2021. Subsequently, the AOJ increased the Veteran's evaluation for degenerative joint disease of the lumbosacral spine to 40 percent, effective July 2, 2020, in a March 2021 rating decision. Such created three periods of staged ratings for the Veteran's degenerative joint disease of the lumbosacral spine: 10 percent from February 18, 1996 to November 20, 2009, 20 percent from November 20, 2009 to July 2, 2020, and 40 percent from July 2, 2020. Most recently, the Veteran's appeal was before the Board in July 2021 when it was remanded for the issuance of a Supplemental Statement of the Case, which was issued in August 2021. The Veteran's appeal has now returned to the Board. 1. Entitlement to a Rating in Excess of 20 Percent from November 20, 2009 to July 2, 2020 and a Rating in Excess of 40 Percent from July 2, 2020 for Degenerative Joint Disease of the Lumbosacral Spine The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected degenerative joint disease of the lumbosacral spine from November 20, 2009 to July 2, 2020, as well as a rating in excess of 40 percent from July 2, 2020. He asserts that his symptoms, including his range of motion measurements, more nearly approximate the criteria for a 40 or 50 percent rating. For the reasons to follow, however, the Board concludes that a retrospective opinion is needed to determine the severity of the Veteran's symptoms throughout the period on appeal. When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examination is adequate where it is based upon consideration of the Veteran's prior medical history and describes the disability and symptoms in sufficient detail to allow the Board to make a fully informed decision. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the January 2010 VA examination fails to adequately consider the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires VA examiners to elicit information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up and after repetitive use over time based on all procurable information from the record, as well as the Veteran's own statements. If these estimates cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. Based on the January 2010 examination report, it is unclear whether the examiner attempted to obtain relevant information regarding the Veteran's flare-ups and any additional functional loss suffered during flare-ups or after repetitive use over time. Moreover, the examiner did not provide estimates of additional loss of range of motion during flare-ups and after repetitive use over time as required by Sharp. 29 Vet. App. at 32. The January 2010 VA examination also fails to comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia held that 38 C.F.R. § 4.59 requires that the examiner complete range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." 28 Vet. App. at 165. As there is no opposite joint for a spine disability, that is not required in this case. Regardless, the January 2010 examination does not contain passive range of motion measurements and pain on weight-bearing testing. Furthermore, the January 2010 VA examiner indicated that the Veteran experienced pain on motion, but she did not note the degree at which pain began on range of motion testing. As such, this examination also failed to comply with the requirements of DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), which held that 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The Board acknowledges that the Veteran submitted two Disability Benefits Questionnaires (DBQs) from his private healthcare providers in September 2013 and April 2016. However, these DBQs are also inadequate to allow the Board to make a fully informed decision on his claim, as they also fail to comply with the requirements of Sharp, Correia, and/or DeLuca. Accordingly, the Board concludes that a retrospective opinion that complies with the requirements of Sharp, Correia, and DeLuca is needed to better ascertain the Veteran's disability picture throughout the period on appeal. Moreover, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the United States Court of Appeals for Veterans Claims (the Court) held that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. While the examiners who performed the January 2010, August 2018, December 2019, and February 2021 VA examinations all noted that the Veteran did not exhibit ankylosis, they did not address whether he demonstrated the functional equivalent of ankylosis. As such, the retrospective opinion should also consider whether the evidence shows the functional equivalent of ankylosis at any point during the period on appeal. (CONTINUED NEXT PAGE) 2. Entitlement to a TDIU Under certain circumstances, a claim for an increased rating for a service-connected disability includes a claim for entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The Veteran's testimony during his March 2016 hearing, as well as his VA examinations, raise the issue of the impact his service-connected degenerative joint disease of the lumbosacral spine has on his ability to work. Thus, a claim for a TDIU is raised as part and parcel of the Veteran's claim for an increased evaluation for his service-connected degenerative joint disease of the lumbosacral spine. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As of November 17, 2019, the Veteran's combined rating was 80 percent based on the following disabilities: (1) degenerative joint disease of the lumbosacral spine (20 percent from November 20, 2009 to July 2, 2020 and 40 percent from July 2, 2020) and (2) unspecified depressive disorder with persistent insomnia disorder associated with degenerative joint disease of the lumbosacral spine (70 percent). Because his service-connected unspecified depressive disorder has been rated at 40 percent or more, the schedular criteria for a TDIU have been met since November 17, 2019. See 38 C.F.R. § 4.16(a). That does not end the inquiry, however. The record must also show that the Veteran is precluded, by reason of his service-connected disabilities, from securing and maintaining any form of gainful employment consistent with his education, skills, and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The evidence shows that the Veteran has been employed as a delivery truck driver. However, the Board concludes that a remand is necessary for further development of the Veteran's TDIU claim, as the record contains conflicting evidence regarding the effect of his service-connected disabilities on his employability. In support of a TDIU, the evidence shows that the Veteran's service-connected degenerative joint disease of the lumbosacral spine has affected his ability to work. In December 2010, the Veteran stated that he was constantly missing work due to his back pain. He also testified in his March 2016 hearing that his back pain affects his job because he is unable to work long hours. Furthermore, the Veteran said he experienced "excruciating" pain while driving for work during his August 2018 VA examination for his back, and he noted difficulty concentrating at work during his December 2019 VA examination regarding his unspecified depressive disorder. On the other hand, vocational rehabilitation records have shown that the Veteran does not experience impairment of his employability due to his service-connected disabilities, as he has been able to maintain employment as a truck driver for over seven years and to work a second job as a real estate agent. These records appear to be from before the Veteran met the schedular requirements for a TDIU. There is also the suggestion that his service-connected disabilities have worsened in the time since. The Board acknowledges that ala combined-effects examination is not required in every case. However, in the instant matter, a remand is warranted for an examination to address whether the aggregate-effect of all of the Veteran's service-connected disabilities precluded substantially gainful employment to warrant entitlement to TDIU. This would be helpful to the Board when forming the ultimate opinion concerning employability. See 38 U.S.C. § 7104 (d)(1); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). The Veteran should also be asked to provide an accounting of his employment history. The matters are REMANDED for the following action: 1. Obtain a retrospective opinion, as best as can be ascertained from the Veteran's self-reports as well as from clinical records and other evidence, regarding the severity of the Veteran's degenerative joint disease of the lumbosacral spine for the period on appeal. Based on the Veteran's statements and other evidence of record, the examiner is asked to provide an opinion estimating the degree at which pain began on range of motion testing throughout the period on appeal, including at the time of the January 2020 VA examination and the September 2013 and April 2016 DBQs. Additionally, the examiner should provide an opinion regarding active motion, passive motion, and pain with weight-bearing and without weight-bearing throughout the period on appeal, including at the time of the January 2020 VA examination and the September 2013 and April 2016 DBQs. The examiner must also provide an opinion regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as well as after repetitive use over time throughout the period on appeal, including at the time of the January 2020 VA examination and the September 2013 and April 2016 DBQs. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repetitive use over time based on the Veteran's statements and other evidence of record. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is also asked to determine whether the evidence has demonstrated the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis, at any point during the period on appeal, including at the time of the January 2010, August 2018, December 2019, and February 2021 VA examinations, as well as the September 2013 and April 2016 DBQs. The examiner must provide a rationale for all opinions proffered. 2. Complete any appropriate notice and assistance for the claim for a TDIU. Request that the Veteran complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. After undertaking the development directed above, schedule the Veteran for a VA examination to obtain a TDIU opinion. After reviewing the claims file, with any necessary examination and testing, the examiner is asked to opine on the following: Provide an opinion regarding the Veteran's ability to function in an occupational environment, document his reported education and work experience, and describe the functional impairment caused solely by his service-connected disabilities. The examiner must not consider the Veteran's age or any occupational impairment caused by any non-service-connected disabilities. The examiner is advised that the Veteran is service connected for degenerative joint disease of the lumbosacral spine and unspecified depressive disorder with persistent insomnia disorder associated with degenerative joint disease of the lumbosacral spine. Provide a rationale for the opinions proffered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.