Citation Nr: 21005864
Decision Date: 02/02/21	Archive Date: 02/02/21

DOCKET NO. 16-36 359
DATE: February 2, 2021

REMANDED

Entitlement to an evaluation in excess of 20 percent disabling for service-connected chronic lumbar strain is remanded.

Entitlement to total disability based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from January 1993 to November 1994. 

In October 2020, the Board most recently remanded the issues below on appeal for further development, and the case has since been returned to the Board. The Board finds that, in part, the AOJ has not substantially complied with the remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998)

Entitlement to an evaluation in excess of 20 percent disabling for service-connected chronic lumbar strain is remanded.

In October 2020, the Board remanded the issue, in pertinent part, for a VA lumbar examination. Specifically, the examiner was directed to determine the range of motion in a written report which complies with 38C.F.R. §4.59 by recording range of motion test results for both weight bearing and nonweight-bearing.  

However, in the subsequent December 2020 VA Back Conditions examination, the examiner stated “The back non-weight bearing testing cannot be performed because…..”. It is not clear to the Board, based on this incomplete statement by the examiner as to why the non-weight bearing testing could not be performed as required by the previous remand. Accordingly, a remand is required for clarification. 

Entitlement to TDIU is remanded.

Finally, because a decision on the remanded issue of chronic lumbar strain could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined.  A remand of the claims on appeal is required.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from the December 2020 clinician addressing the Veteran’s range of motion test results for nonweight-bearing, specifically, the reasoning as to why the nonweight-bearing test could not be performed at the time.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, 

 

return the case to the Board for further appellate review.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. A. Elliott II, 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.