Citation Nr: 21076313 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 13-00 598A DATE: December 23, 2021 REMANDED Entitlement to initial higher ratings for cervical strain, currently evaluated as noncompensable prior to March 17, 2016, 10 percent disabling from March 17, 2016 to June 8, 2021, and 20 percent disabling thereafter, is remanded. Entitlement to initial higher ratings for thoracolumbar strain, currently evaluated as 10 percent disabling prior to June 8, 2021 and 20 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2005 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the Veteran's service-connected disabilities may have prevented him from working (or restricted the amount of time he can work) during the appeal period. See August 2012 notice of disagreement (NOD). Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. 1. Entitlement to initial higher ratings for cervical strain, currently evaluated as noncompensable prior to March 17, 2016, 10 percent disabling from March 17, 2016 to June 8, 2021, and 20 percent disabling thereafter, is remanded. 2. Entitlement to initial higher ratings for thoracolumbar strain, currently evaluated as 10 percent disabling prior to June 8, 2021 and 20 percent disabling thereafter, is remanded. 3. Entitlement to TDIU is remanded. Despite the additional and regrettable delay, a remand is required because there was not substantial compliance with the Board's August 2021 remand directive to address the Veteran's July 2012. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Veteran described the nature of his neck and back disabilities in the July 2012 statement and to date, the VA examinations have noted reviewing the statement, but have not addressed the statement in any substantive way. For example, the Veteran stated that his back pain radiates down to his legs, which may be indicative of lower extremity radiculopathy, but the examiners have checked "no." See September 2021 VA examination at Sections VIII, X. Further, the Veteran reported missing work due to his service-connected disabilities, and the Board finds this issue has not been fully developed. The matters are REMANDED for the following action: 1. The RO should provide the Veteran appropriate notice of VA's duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include providing him a VA Form 21-8940. The Veteran should assist in the matter by providing the requested information. 2. Schedule the Veteran for VA examinations to determine the current nature and severity of his cervical and thoracolumbar strain disabilities. The claims file should be made available to and reviewed by the examiner. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. The examiner must also attempt to elicit information about the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner should 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). All diagnostic testing needed to ascertain the current nature and severity of the Veteran's cervical and thoracolumbar strain disabilities should be performed and a written interpretation should be associated with the examination report. The examiner MUST also discuss the Veteran's July 2012 lay statement, received in August 2012 as part of his notice of disagreement, which describes the Veteran's daily pain and functional limitations. It is not sufficient to simply state the record was reviewed. Specifically, the examiner should attempt to estimate the severity of the Veteran's range of motion limitations and functional limitations at that time. If it is not possible to provide a specific measurement without speculation, the examiner should 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). Specifically, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran's report of pain radiating down into his legs represents a possible associated neurologic abnormality. Any necessary diagnostic testing should be conducted. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.