Citation Nr: 21007486 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 10-16 513 DATE: February 9, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for a low back disability prior to October 28, 2014, and in excess of 20 percent thereafter is remanded. Entitlement to a disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1981 to August 1981 and from January 1991 to March 1991. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2009 rating decision which granted service connection for a low back disability and assessed a 10 percent rating, effective April 23, 2008. This matter also comes to the Board from an August 2010 rating decision that denied entitlement to a TDIU. In August 2014, the Board remanded the case for further development. A February 2015 rating decision granted an increased evaluation of 20 percent for a low back disability, effective October 28, 2014. In May 2016 and February 2018, the Board remanded the case for further development. A January 2019 rating decision granted a temporary evaluation of 100 percent for a low back disability, effective September 4, 2018, due to surgical treatment necessitating convalescence. The temporary evaluation ended on October 31, 2018, and the evaluation of 20 percent continued, effective November 1, 2018. A November 2019 rating decision granted an increased evaluation of 60 percent for a low back disability, effective April 23, 2019. A January 2020 rating decision denied entitlement to a TDIU. A February 2020 rating decision proposed to decrease the evaluation of 60 percent to 40 percent for a low back disability due to clear and unmistakable error. An April 2020 rating decision decreased an evaluation of 60 percent to 40 percent for a low back disability, effective July 1, 2020. A May 2020 rating decision assessed an evaluation of 40 percent for a low back disability, effective December 13, 2018; an evaluation of 60 percent, effective April 23, 2019; and an evaluation of 40 percent, effective July 1, 2019. Although the rating decision stated July 1, 2019, the code sheet stated July 1, 2020. The record reflects that the Veteran received a September 2020 letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. The Veteran provided testimony in a hearing before the undersigned Veterans Law Judge in May 2014. The transcript of the hearing is of record. The record also reflects that the Veteran received a November 2020 letter indicating that he had requested to participate in the Rapid Appeals Modernization Program and inquiring whether he would still like to participate in the program. The letter stated that the Veteran’s case would be processed under the legacy system if no response was received within 60 days. No response was received. Therefore, this matter is adjudicated under the legacy system. 1. Low back disability The Board’s 2018 remand found the March 2009 and October 2014 VA examinations inadequate because they did not specify whether testing was done for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The remand also stated that the examinations did not reflect at what degree pain begins, including during repetitive use and during flare-ups. The remand directed the examiner, to the extent possible, to estimate loss of motion due to pain as reported in the March 2009 and October 2014 VA examination reports based upon the medical evidence of record and the Veteran’s lay statements. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of a low back disability. Another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The agency of jurisdiction (AOJ) did not request the examiner to estimate loss of motion due to pain as reported in the March 2009 and October 2014 VA examination reports based upon the medical evidence of record and the Veteran’s lay statements. As a result, the examiner did not provide an opinion on such estimates. On remand, the AOJ should obtain an addendum opinion from the October 2019 VA examiner. 2. TDIU Regarding the issue of entitlement to a TDIU, a decision on the increased rating claim for a low back disability being remanded herein may affect the claim for TDIU. Any grant of an increased rating could significantly change the adjudication of the TDIU issue because such a grant could increase the Veteran’s overall combined disability percentage. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. Appl 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issue is resolved or prepared for appellate consideration. See id. (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The Board notes that, in January 2020, the Veteran completed a VA Form 21-8940 where the Veteran reported last working in 2008. The Board notes, however, that the claims file shows potential recent work activity, to include a September 2018 VA treatment record where the Veteran reported that he needed a letter for his employer Uber, a July 2019 VA treatment record where the Veteran reported working as a truck driver and questioned whether he would be cleared to return to work on that day, and an August 2019 VA treatment record indicating that the Veteran worked as a truck driver until five years ago. On remand, the AOJ should provide the Veteran with a VA Form 21-8940 and 21-4138 to identify any work history after 2008, to include self-employment, and clarify notations in the VA treatment records suggesting potential recent work activity. The matters are REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and a VA Form 21-4138, Statement in Support of Claim, to identify any work activity since 2008. 2. Obtain an addendum opinion from the October 2019 VA examiner. To the extent possible, the examiner is asked to estimate loss of motion due to pain and functional loss, to include on both active and passive motion, in weight bearing and nonweight-bearing, during flare-ups, and after repetitive use, as reported in the March 2009 and October 2014 VA examination reports based upon the medical evidence of record and the Veteran’s lay statements. The examiner must provide a complete rationale for all opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically 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. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Craig Ormson, 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.