Citation Nr: 21007663 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-28 028 DATE: February 10, 2021 REMANDED Entitlement to a rating more than 10 percent for lumbar strain, myositis and spasm for the period prior to March 21, 2015 is remanded. Entitlement to a rating more than 20 percent for lumbar strain, myositis and spasm for the period after March 21, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 4, 2014, is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1987 to November 1989. In July 2017, the Board remanded the Veteran’s appeal for evidentiary development. It has since been returned to the Board for further consideration. 1. Entitlement to a rating more than 10 percent for lumbar strain, myositis and spasm for the period prior to March 21, 2015 is remanded. 2. Entitlement to a rating more than 20 percent for lumbar strain, myositis and spasm for the period after March 21, 2015 is remanded. 3. Entitlement to a total disability rating based on individual unemployability, (TDIU), prior to November 4, 2014, is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s July 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board’s directed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding treatment records and schedule the Veteran for an appropriate VA medical examination to determine the current severity of her service-connected lumbar strain, myositis and spasm. Unfortunately, it does not appear that any of the above requested development was conducted. Curiously, the December 2019 Supplemental Statement of the Case (SSOC) did not discuss the increased rating claim at all, and instead stated that service connection for lumbar strain, myositis and back spasm is granted. However, service connection for this disability has already been granted, effective March 4, 2010. With respect to the Veteran’s claim for entitlement to a TDIU, the AOJ was instructed to provide the Veteran with the appropriate form to file a claim for a TDIU. She has had a 100 percent combined schedular rating assigned since November 4, 2014, and has not single disability at 100 percent disabling, it was suggested that she was rendered unemployable prior to that date. That period remains at issue. It does not appear that the AOJ ever provided the Veteran with the relevant VA Form 21-8940, which is important to properly evaluate the TDIU claim. Furthermore, the December 2019 SSOC fails to mention the issue of entitlement to a TDIU at all. The Board observes that the Veteran is in receipt of a 100 percent combined rating, effective November 21, 2016. However, the issue of entitlement to a TDIU for the earlier time is inextricably intertwined with the claim for increased ratings previously discussed. On remand, the Veteran should be provided notice regarding TDIU and the Veteran should be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran’s electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU for the time in question. This should include sending the Veteran a letter advising her of the information and evidence needed to award a TDIU. The letter should also request that she complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU. 3. Additionally, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of her service-connected lumbar strain, myositis and spasm. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the electronic claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s lumbar strain, myositis and spasm under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. He or she should also indicate whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should further state the total duration of incapacitating episodes over the past 12 months and identify any/all neurological manifestations of the disorder. Evidence used in making this determination should be highlighted. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner must also address the Veteran’s lumbar strain, myositis and spasm in terms of passive and active motion, and weight-bearing and non-weight bearing motion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All prior reports should be discussed and/or reconciled, as necessary. 4. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. The issue of entitlement to a TDIU prior to November 4, 2014, should also be adjudicated. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.