Citation Nr: 21007976 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-33 487 DATE: February 11, 2021 REMANDED Entitlement to increases in the “staged” ratings (10 percent prior to June 25, 2014 and 20 percent since) for a low back disability is remanded Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 16, 2018 also is remanded. REASONS FOR REMAND In a December 2019 decision, the Board denied increases in the “staged” ratings (10 percent prior to June 25, 2014 and 20 percent from that date onward) for the Veteran’s low back disability. He appealed the Board's decision to the higher United States Court of Appeals for Veterans Claims (Court/CAVC). In an October 2020 Order, the Court vacated the portion of the Board's decision denying this claim and remanded this claim back to the Board pursuant to agreement in a Joint Motion for Partial Remand (JMPR). In addition to the issue of whether higher “staged” ratings are warranted for the low back disability, the JMPR agreed that the Board additionally should consider whether entitlement to a TDIU is warranted prior to August 16, 2018. To comply with the Court’s Order granting the JMPR, the Board, in turn, is remanding these claims back to the Agency of Original Jurisdiction (AOJ).   1. Entitlement to increases in the “staged” ratings for the low back disability The Veteran had examinations of his spine in October 2010, June 2012, June 2014, and July 2018. In the JMPR, however, it was agreed that another examination is needed to provide an estimate as to loss of range of motion following repetitive use over time or an explanation of why an estimate cannot be given. In addition, a retrospective medical opinion discussing the findings of the prior examinations may be useful to the Board. 2. Entitlement to a TDIU prior to August 16, 2018 The Veteran is in receipt of service connection for a low back disability, status post discectomy with fusion and intervertebral disc syndrome (IVDS) with degenerative arthritis, as well as for several consequent disabilities – namely, also for major depressive disorder, right lower extremity radiculopathy, left lower extremity radiculopathy, and a scar. Although he has these several service-connected disabilities, they are considered as one, collective, disability for the purpose of determining whether he has sufficient rating to meet the threshold minimum requirements of 38 C.F.R. § 4.16(a) to be considered for a TDIU on a schedular basis because these disabilities have a common etiology. He resultantly has had sufficient rating effectively since August 22, 2014 to be considered for a TDIU on a schedular basis according to § 4.16(a). Records reflect that the Veteran was in special education classes in the 7th grade, dropped out of high school in the 9th grade, worked as a blaster in service, and post-service worked as a painter, general laborer (sweeping floors, putting tobacco into a machine) and truck driver. He also has had periods of unemployment and several periods of incarceration. He reports having completed a training program in welding prior to service. A 1999 VA clinical record notes that he was receiving Social Security Administration (SSA) benefits, but his SSA records are not in his VA claims file.   The claims file includes pages 1 and 3 of a TDIU application (VA Form 21-8940), but page 2, where a Veteran list all prior employment, appears to be missing from the claims file. Thus, he should be afforded another opportunity to submit this pertinent information with regard to his employment from 2010 to 2018. The Veteran contends that he is entitled to a TDIU effective from March 28, 2011, the date he submitted a VA Form 21-4138 (Statement in Support of Claim) requesting that his low back disability be revaluated. However, as already explained, he did not meet the schedular rating criteria prior to August 22, 2014. In this circumstance, for the period prior to that date, the Board's analysis is limited to determining whether this claim should be referred to the Director of the Compensation Service to consider whether this TDIU benefit is warranted, instead, on an extra-schedular basis pursuant to the special provisions of § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). The Board will refer the matter to the Director under § 4.16(b), however, only when Board determines the Veteran was unemployable due to his service-connected disability(ies). As also already mentioned, service connection has been granted for radiculopathy of the right lower extremity – which is evaluated as 10-percent disabling, also for radiculopathy of the left lower extremity – also evaluated as 10-percent disabling, for the underlying low back disability – as well evaluated as 10-percent disabling, and for a scar – instead evaluated as 0-percent disabling (so noncompensable). The Veteran also had a temporary 100 percent convalescent rating from July 22, 2010 to September 1, 2010 under the provisions of 38 C.F.R. § 4.30. An October 2010 contract examination reflects that the Veteran had normal range of motion of his spine, including after repetitive use testing. He reported that he could, on average, only walk 50 yards and that it takes him an hour to accomplish this due to his low back disability. A June 2012 Disability Benefits Questionnaire (DBQ) shows the Veteran reported constant pain in his low back during a flare up. Upon examination, he had 80 degrees of flexion – with pain beginning at 0 degrees, and extension to 30 degrees – with pain beginning at 30 degrees. He also had pain throughout lateral flexion and lateral rotation. After repetitive use testing, he had 90 degrees of flexion, with the other ranges of motion remaining the same as the initial testing. The examiner indicated the Veteran’s low back disability impacted his ability to work in that he had partial impairment of physical activities such as heavy lifting and prolonged standing. A DBQ for peripheral neuropathy notes severe numbness of the right and left lower extremities. He was noted to have mild incomplete paralysis of the sciatic nerve in each lower extremity. The examiner opined that the impact of this peripheral neuropathy on the Veteran’s ability to work is partial impairment of activities such as running and prolonged standing. A June 2014 DBQ reflects that the Veteran reported that, sometimes he cannot get up and walk due to his low back disability. He reported constant daily pain with pain being a 8 to 10 out of 10, that he uses a brace for pain and relief, and that he takes Oxycodone to treat it. Upon examination, he had full range of motion but pain throughout. The examiner found that the impact of the condition on the Veteran’s ability to work is partial impairment such as heavy lifting, pushing, pulling, and carrying. These claims are REMANDED for the following action: 1. Provide the Veteran with another TDIU application (VA Form 21-8940) and request that he list all employer information from 2010 to 2018. 2. Obtain the Veteran's disability records from the SSA, including copies of all decisions and any medical evidence considered. Document all requests for these records, as well as all responses, in the claims file. 3. After receiving the requested employment information and the records from SSA, schedule the Veteran for another examination by an appropriate clinician to reassess the severity of his low back disability and all associated complications of it. To this end, the examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must 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), the examiner (does not have the knowledge or training), or whatever other reason precludes responding. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), the examiner (does not have the knowledge or training), or whatever other reason precludes responding. The examiner should make findings with regard to whether the Veteran’s reports of pain on motion are credible and/consistent with the degree of disability.   In addition to current findings, the examiner should, if reasonably possible, provide a "retrospective" medical opinion based on the October 2010, June 2012, June 2014, and July 2018 examination reports/DBQs. The examiner should provide the estimated range of motion of the Veteran’s lumbar spine after repetitive use over time and during a flare-up. If the examiner finds it impossible to provide a response without resorting to mere speculation, he or she should so indicate but, even more importantly, provide some explanation as to why a sufficiently definitive response is not possible or feasible. 4. Thereafter, when readjudicating the claim concerning the “staged” ratings for the Veteran’s low back disability and adjudicating his derivative claim for a TDIU prior to August 16, 2018, consider whether referral of the TDIU claim to the Director of the Compensation Service under 38 C.F.R. § 4.16(b) for extra-schedular consideration is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.