Citation Nr: 21076278 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-26 070 DATE: December 23, 2021 REMANDED Entitlement to an initial rating evaluation for degenerative disc disease with degenerative joint disease (DJD) (claimed as residuals, lower back injury) in excess of 20 percent from May 29, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability based on service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from February 1981 to February 1985 and from May 2002 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This matter was previously addressed at a video conference Board hearing before the undersigned Veteran's Law Judge in August 2019 and were subsequently remanded for further development in October 2019 and October 2020, respectively. A transcript of that hearing has been associated with the record. The Board notes that following the October 2020 Remand by the Board that included the Veteran's claim for posttraumatic stress disorder (PTSD), in a September 2021 rating decision, the RO granted the Veteran service connected for PTSD at an initial rating of 70 percent, effective September 11, 2014, the date of his claim. Thus, this issue is no longer before the Board. However, in November 2021, the Veteran filed a claim for TDIU asserting that he was no longer working due to his service-connected disabilities, which includes his back disability, for which he is currently seeking an increased rating. As such, the Board acknowledges that entitlement to a TDIU has also been raised on the record. Consequently, the Board must take jurisdiction under Rice to ensure that the effective date downstream to a potential TDIU allowance is tied to the Veteran's appeal. A TDIU claim is part of an increased rating claim when such claim is asserted by the veteran or raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board finds that a claim for TDIU has been added to this appeal, which requires further development and is therefore also addressed in the Remand portion below. 1. Entitlement to an initial rating evaluation for degenerative disc disease with degenerative joint disease (DJD) (claimed as residuals, lower back injury) in excess of 20 percent from May 29, 2019, is remanded. In response to the Board's October 2020 Remand directives, the Veteran was afforded a VA back examination in December 2020. Unfortunately, the Board concludes that a remand is once again necessary because the requested findings concerning the Veteran's flareups of his back disability remains inadequate for the purpose of readjudicating this issue. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, even though the Veteran reports increased pain and difficulty bending and lifting during a flare-up, which the examiner acknowledged, concluding that the functional impact during a flare-up is "significant," , the range of motion (ROM) findings reported during a flare-up are the same as the initial ROM findings, which is not complaint under Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). To this point, the United States Court of Appeal for Veteran's Claims (Court) has recently provided guidance for cases involving a VA examiner's description of additional limitation and functional impairment during a flare-up of symptoms currently and in the past under Sharp. In Cagliero v. Wilkie, No. 19-6895 (November 30, 2020), a non-precedential single-judge memorandum decision issued by the Court, provided that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up. In this case, the December 2020 VA examiner did not fully address these criteria, and thus this negatively impacts the Veteran's appealed issue. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board finds that a remand is necessary in order for the Agency of Jurisdiction (AOJ) to develop the Veteran's TDIU claim, including collecting and verifying information concerning the Veteran's complete educational and occupational history. The Board notes that the Veteran meets the schedular threshold for entitlement to a TDIU for the period on appeal, which is effective September 11, 2014, pursuant to 38 C.F.R. § 4.16 (a). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the current findings AND retrospective assessments of the severity of his back disability for the entirety of the appeal period (May 19, 2019 to the present). The claims file, including all pertinent VA and private medical reports of record and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. To the degree possible, it would be helpful to schedule the Veteran for a VA examination during flare-ups of his service-connected back disability. The claims file, including all pertinent VA and private medical reports of record and a copy of this Remand must be made available to and reviewed by the examiner prior to conducting this examination, and he/she should note that such review of the evidence was conducted. The examiner should report the extent of the Veteran's back disability in accordance with VA rating criteria and must fully describe the frequency and severity of ALL manifestations of the Veteran's disability. Range of motion testing (ROM) should be accomplished and reported for the thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 should also fully report functional impairment due to incoordination, weakened movement, excess fatigability, pain, or flare-ups in terms of additional degrees of limitation of motion. The examiner is advised that the Veteran is competent to report limitation during any flare-ups. All neurological manifestations should be included in the examination report. *Regarding the requested findings during a flare-up of symptoms, if the current examination is not being conducted during a flare-up of the Veteran's back symptoms, the VA examiner is requested to retrospectively convey any increased symptomatology and limited motion (the latter, expressed in degrees) during flare-ups of symptoms throughout the appeal period, based on the Veteran's statements and other medical evidence of record showing increased pain and/or limitation, to include within his VA and/or private treatment records. The examiner should also discuss any findings pertinent to any functional and occupational limitation of the Veteran's currently service-connected disabilities (i.e. degenerative disc disease with degenerative joint disease (back); PTSD; residuals of a left eye injury and tinnitus and offer an opinion as to the extent of such limitations. In this regard, the examiner must elicit a history from the Veteran regarding his education and work experience. The examiner is asked to consider all of the Veteran's lay statements regarding the impact of his service-connected disabilities on his ability to work, and any other additional employment-related information submitted by the Veteran. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Ensure substantial compliance with all the directives contained in this remand. If the report is deficient in any manner, the Agency of Jurisdiction (AOJ) must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history and scheduling him for any appropriate VA examination(s). 3. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issues remaining on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.