Citation Nr: 21007465 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-30 707 DATE: February 9, 2021 THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REMANDED Entitlement to a rating in excess of 20 percent for a back disability is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran had active service from July 1963 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) in Louisville, Kentucky. This matter was previously adjudicated by the Board in an August 2018 decision. In that August 2018 decision, the Board remanded the Veteran's claim of entitlement to a rating in excess of 20 percent for a back disability in order to obtain a contemporaneous VA medical examination. Although the Board regrets the further delay, it finds that an additional remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). A claim for a TDIU rating is considered part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds that the Veteran's TDIU claim is part and parcel of the increased rating claim on appeal, and is properly before the Board. Thus, the TDIU claim is reflected on the title page Entitlement to a rating in excess of 20 percent for a back disability is remanded. Entitlement to a TDIU is remanded. In his August 2015 VA Form 9, formal appeal to the Board, the Veteran asserted that his back disability has worsened since the July 2011 VA examination. See VA Form 9, August 2015. As such, the Board found in its August 2018 decision that the Veteran should be scheduled for a new VA examination to assess the current severity of his back disability. Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). The Veteran was afforded such a VA examination in September 2019. The United States Court of Appeals for Veterans Claims (Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2016) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The prior VA examination did not comply with Correia and as such, a remand is required so that the Veteran may be afforded a new VA examination that would assess his back disability and contain adequate information pursuant to Correia. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. During the September 2019 VA examination, the examiner stated that passive range of motion was not performed “as it is not feasible to do this in a safe and reasonable manner.” Additionally, the examiner recorded that “non-weight bearing assessment is not applicable. There is no objective evidence of pain when the spine is in non-weight bearing position at rest.” The examiner recorded that the Veteran suffered from moderate flare ups of the lumbar spine one to two times a month, which were painful and lasted a few days. However, when asked to determine functional loss in terms of range of motion, the examiner found that based on a review of the file and her own medical knowledge and expertise, she did not have the “basis to offer additional losses of function or motion during a flare up.” As noted above, Sharp held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Upon remand, the Veteran should be afforded a new VA examination which complies with Courts holding in Sharp and addresses the Veteran’s attorney’s subsequent contentions in the January 2021 appellate brief. As for the issue of entitlement to TDIU, the Veteran has explicitly raised the issue of a TIDU and submitted a formal application for such. See January 2021 Application for Increased Compensation Based on Unemployability. The issue of entitlement to a TDIU is inextricably intertwined increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). Therefore, the Agency of Original Jurisdiction (AOJ) should take appropriate steps to develop and adjudicate the claim for TDIU in light of all the evidence of record. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all of the Veteran's outstanding VA and private treatment records. All actions to obtain the requested records should be documented fully in the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his lumbar strain/back disability. The examiner must review the claims file and note that review in the examination report. The examiner must provide the rationale for all opinions expressed. If the examiner is unable to provide the required opinion, the examiner should explain why that is. The examiner should provide opinions on the following: (a.) Please identify all back orthopedic pathology and any neurological abnormalities found to be as likely as not associated with the Veteran's lumbar back disability. Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's back, i.e., the extent of the Veteran's pain-free motion. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. (c.) Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. To the extent possible, this should be expressed in terms of range of motion. The examiner is reminded any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. (d.) The examiner should also obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran's back disability affects him in his everyday life, particularly the impact that it has on the Veteran's ability to secure and follow a substantially gainful occupation. In this regard, the examiner is asked to address the Veteran’s contentions of symptoms outlined in the record and specifically in the January 2021 appellate brief. 3. Thereafter, readjudicate the issue on appeal, including the intertwined TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.