Citation Nr: 21007606 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-22 117 DATE: February 10, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine prior to January 9, 2014 and in excess of 20 percent thereafter is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty for training from June 1988 to July 1988 and on active duty in the United States Army from January 1989 to February 1992, January 1997 to November 2003, and March 2006 to September 2007. His decorations include the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the appeal in July 2015, May 2017, October 2017, and May 2019. 1. Entitlement to an initial rating in excess of 10 percent for DJD and DDD of the lumbar spine prior to January 9, 2014 and in excess of 20 percent thereafter is remanded. Unfortunately, another remand is necessary, as the December 2019 VA examiner did not provide an estimate of additional range of motion lost during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, VA treatment records indicate the Veteran received a physical therapy referral for his low back pain in October 2017, and said private records were “scanned into Vista Imaging” in May 2018. See November 2017 VHA Choice Approval for Medical Care; May 2018 VA Addendum (physical therapy records scanned in Vista Imaging). Nevertheless, the reference records are not associated with the claims file, and should be secured on remand. 2. Entitlement to TDIU is remanded. The issue of entitlement to a TDIU is deferred, pending the above-requested development on inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Additionally, the Board requests the Veteran complete an updated VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, upon remand, as the most current VA Form 21-8940 is dated in March 2015 and is incomplete. See March 2015 VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records, to include all records of physical therapy initiated in November 2017. See May 2018 VA treatment records Addendum (noting Medical records for PHYSICAL THERAPY are in Vista Imaging under Veterans Choice Note dated, 11/06/2017). If requested records are not available, the claims file should be annotated to reflect such, and the Veteran notified of the same. 2. With the assistance of the Veteran, please obtain any and all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Request the Veteran to complete and return an updated VA Form 21-8940. 4. When #1, #2, #3 are completed, to include obtaining updated physical therapy records, return the claims file to the December 2019 VA examiner (or another examiner, preferably a physician, if unavailable) for preparation of an addendum opinion to determine the severity of the Veteran’s service-connected DJD and DDD of the lumbar spine over the course of the entire appeal period. No additional examination is needed unless the examiner determines otherwise. The entire claims file and a copy of this REMAND must be made available to and reviewed by the examiner. After reviewing the evidentiary record, the examiner is asked to respond to the following inquiry: Considering the Veteran’s reported history, to include in his VA examination reports, please provide an opinion describing functional impairment of the Veteran’s lumbar spine due to flare-ups since the beginning of the appeal period (April 20, 2009), accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide a medical opinion as to additional range of motion lost during a flare-up, provide an explanation for this conclusion, to include a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the ability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria L. Stephens 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.