Citation Nr: 21008918 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 11-32 180 DATE: February 18, 2021 REMANDED Entitlement to an initial rating higher than 10 percent, prior to September 22, 2020, for status post lumbar laminectomy, arthritis of the lumbar spine and foraminal stenosis (previously rated as degenerative joint disease of the lumbar spine), and to a rating higher than 20 percent, thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from September 1979 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a Board hearing before the undersigned and a copy of that transcript is of record. In May 2017 and April 2020, the Board remanded these claims for additional development. In a September 2020 rating decision, the RO granted an increased evaluation of 20 percent for the Veteran’s lumbar spine disability, effective September 2020. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 20 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial rating higher than 10 percent, prior to September 22, 2020, for status post lumbar laminectomy, arthritis of the lumbar spine and foraminal stenosis (previously rated as degenerative joint disease of the lumbar spine), and to a rating higher than 20 percent, thereafter is remanded. Inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished. The April 2020 Board remand directed the RO to afford the Veteran a VA medical examination for his lumbar spine disability. The examiner was instructed to include the degree at which pain occurred during range of motion tests of the spine in order to adequately rate the disability according to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran was afforded a VA examination in September 2020. In the September 2020 VA examination, the Veteran’s range of motion was limited, with pain noted on forward flexion and extension. Unfortunately, the degree at which pain occurred during range of motion testing was not noted in the examination report. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the claim is remanded again to afford the Veteran a VA examination to determine the current severity of his lumbar spine. The degree at which pain occurs must be noted in the examination report. 38 C.F.R. § 4.40 requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. These findings are necessary to adequately rate the Veteran’s disability. On remand, the examination should discuss and respond to the instructions provided in the April 2020 remand. 2. Entitlement to a TDIU is remanded. The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the pending increased rating claim for the Veteran’s lumbar spine disability. Total disability ratings for compensation purposes may be assigned where the schedular rating is less than total. The Board notes that a grant of an increased rating for the lumbar spine disability could affect the Veteran’s eligibility for entitlement to a TDIU. Therefore, this issue cannot be adjudicated at this time and is deferred pending completion of the development ordered on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current severity of his degenerative joint disease of the lumbar spine. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the spine and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) in accordance with DeLuca. Any indicated neurological testing should also be conducted. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the spine cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. Regarding flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. 2. The RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.