Citation Nr: 21005521 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-08 593 DATE: February 1, 2021 REMANDED The claim for a rating in excess of 20 percent for a lumbar spine disability is remanded. The claim for a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from May 1987 to July 2002. In April 2016, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Back A December 2017 Board decision denied a rating in excess of 20 percent for a lumbar spine disability, to which the Veteran appealed to the United States Court of Appeals for Veterans Claims (the “Court”). In August 2018, the Court vacated the December 2017 Board decision and remanded the issue for action consistent with a Joint Motion for Remand (JMR). In the JMR, parties agreed that the March 2011, November 2016, and June 2017 VA examinations upon which the Board relied in its December 2017 decision were inadequate in that the examiners did not identify where in the range of motion the Veteran’s pain began and being unable to opine as to the Veteran’s functional limitation during flare-ups or with repeated use over time without giving adequate explanations as to why such opinions would be mere speculation. The JMR also requested the Board consider whether the issue of entitlement to a TDIU had been reasonably raised by the record. A November 2018 Board decision remanded the issue for a new VA examination pursuant to the JMR. A VA examination was conducted in September 2019, but the examination report was unclear about whether the Veteran’s forward flexion is functionally limited to 80, 70, or 20 degrees. An April 2020 Board decision remanded the issue again for clarification of the range of forward flexion by the September 2019 examiner or to conduct a new VA examination. A VA examination was conducted in August 2020 by a different examiner who did not conduct the 2019 VA examination. The examiner indicated the initial range of motion was forward flexion to 75 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner indicated that the pain, weakness, fatigability or incoordination with repeated use over a period of time or during flare-ups significantly limited the functional ability. However, the examination report showed that the range of motion with repeated use over a period of time or with flare-ups were exactly the same with the initial range of motion. The examiner failed to provide any explanation for this. As such, additional development is needed. Sharp v. Shulkin, 29 Vet. App. 26 (2017). TDIU TDIU is inextricably intertwined with the increased rating claim for the lumbar spine, it too should be remanded. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar spine disability. In doing so, the examiner should: (a) Make specific findings as to whether, and to what extent, the Veteran has additional functional loss or change in range of motion of his lumbar spine due to pain and repeated use over time. (b) In compliance with Sharp, the examiner should make efforts to assess functional loss during flare-ups or after repetitive use and to quantify that functional loss in terms of degrees of additional loss of motion based on all evidence of record (including Veteran’s lay statements), or to state that such a quantification is not feasible and explain why he or she could not make such quantification. The examiner may not decline to provide an assessment of quantification simply because the Veteran was not observed by an examiner during a flare-up or a repetitive test. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.