Citation Nr: 21076410 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-15 977 DATE: December 23, 2021 REMANDED Entitlement to service connection for an upper back/cervical spine condition is remanded. Entitlement to a rating in excess of 10 percent for a low back disability 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 October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and October 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing in August 2021. 1. Entitlement to service connection for upper back/cervical spine condition. The Veteran asserts that his upper back/cervical spine condition is due to the same in-service injury that caused his service-connected low back disability. In August 2021, the Veteran testified before the Board that he injured his upper back/cervical spine along with his low back when he fell into a ravine during basic training while serving in Okinawa. Although the Veteran's service treatment records (STRs) do not show complaints of upper back/cervical spine-related symptoms, the Veteran's statements regarding his in-service injury and seeking treatment in Okinawa were found credible by the Board in a September 2015 decision that granted service connection for his low back disability. Post-service VA treatment records also show the Veteran reporting neck pain. Furthermore, the Veteran's upper back/cervical spine condition could be related on a secondary basis to his service-connected low back disability. The Board notes that the Veteran has not been afforded a VA examination for his upper back/cervical spine condition. Given the above, the Board finds that there is insufficient information to make a decision on the claim and that the low threshold for a VA examination, in order to obtain a medical opinion, has been met in this case. See 38 U.S.C. § 5103A; McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to a rating in excess of 10 percent for a low back disability. During the August 2021 Board hearing, the Veteran, his wife, and his daughter testified that his low back disability symptoms have worsened since his last VA examination in February 2017, including increased pain, functional loss that requires assistance in order to move, and needing a walker. The Board finds there is evidence of more severe symptoms since his last examination. As such, the Board finds that a new examination is necessary in order to assess the current severity of the Veteran's low back disability. 3. Entitlement to a TDIU. In a December 2014 TDIU application, the Veteran stated that he retired due to his medical conditions. In addition, a January 2014 lay statement submitted by the Veteran's wife states that he lost his teaching position, as he was unable to stand for hours due to his severe back pain. As such, the Board will take jurisdiction of entitlement to TDIU per Rice v. Shinseki, 22 Vet. App. 447 (2009). Furthermore, although the Veteran has been granted a 100 percent disability rating for his posttraumatic stress disorder (PTSD), the United States Court of Appeals for Veterans Claims (Court) has held that the award of a 100 percent disability rating does not necessarily render moot the claim of entitlement to TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). Under Bradley, TDIU can be warranted if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. Under those circumstances, there was no "duplicate counting of disabilities." Bradley at 293. In this case, the record suggests the Veteran's service-connected low back disability, not just his PTSD, may render him unemployable. Finally, the matter of TDIU is inextricably intertwined with the currently remanded claim for an increased rating. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, remand of the TDIU claim is required as well. The matters are REMANDED for the following action: 1. Furnish the Veteran with a notice letter and TDIU application, and allow a reasonable period of time for a response. 2. Schedule the Veteran for a VA spine examination with an appropriate clinician to determine: 1) whether any current upper back/cervical spine conditions are related to active service, and 2) the symptoms and severity of the service-connected low back disorder. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. For any upper back/cervical spine conditions identified, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) due to an in-service injury, event, or disease, including the in-service injury that caused his service-connected low back disability, in which the Veteran fell into a ravine during basic training while stationed in Okinawa. The examiner should also provide an opinion as to whether any upper back/cervical spine condition is at least as likely as not (a 50 percent or greater probability) proximately due to, or aggravated by the service-connected low back disability. The examiner must address both causation AND aggravation for the opinions to be deemed adequate. Notably, Ward v. Wilkie, 31 Vet. App. 233 (2019) held that a "permanent worsening" of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). As to the low back disability, the spine should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training) All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.