Citation Nr: 21009328 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-39 141 DATE: February 22, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 3, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from April 1992 to March 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and March 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2018. This case was previously before the Board in April 2018 and November 2019, when it was remanded for development. The case has been returned to the Board for further appellate review. In the November 2019 remand, the Board noted an August 2019 Decision Review Request regarding the issue of entitlement to a TDIU prior to August 3, 2018. The Board considered the issue under the legacy framework, as the Veteran had not opted into the Appeals Modernization Act (AMA) process on the Decision Review Request. In April 2020, the Veteran’s representative submitted a written statement declining to file the updated VA Form 21-8940 requested in the November 2019 remand, noting that the TDIU benefit had been granted and the effective date was on appeal based on the August 2019 Decision Review Request. However, after a subsequent Supplemental Statement of the Case denied a TDIU prior to August 3, 2018, the Veteran and his representative submitted an updated VA Form 21-8940, which was then considered in this legacy appeals stream. Although the representative’s April 2020 written statement indicates intent to withdraw the issue from the legacy appeals system, the subsequent submission of an updated VA Form 21-8940 rather than further communication regarding the Decision Review Request indicates consent to keep this issue in the legacy appeals system. The Board further notes the RO has not accepted either the August 2019 Decision Review Request or the April 2020 written statement as indicating pursuit of the TDIU claim into the AMA framework. Therefore, the Board will continue to consider the issue of a TDIU prior to August 3, 2018, under the legacy appeals framework. 1. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability is remanded. At the July 2020 VA spine examination, the Veteran reported that he no longer works or does anything to irritate his back, and that instead of sitting to watch television, he lies down with his feet elevated to avoid aggravating his back. Despite this report, the examiner did not elicit any further information from the Veteran regarding what activities cause irritation or aggravation, what symptoms he experiences when his back is irritated or aggravated, the severity of symptoms upon irritation or aggravation, or how long any such symptoms persist. This failure to address any functional limitation during flare-ups renders the examination inadequate to determine the current severity of the Veteran’s service-connected lumbar spine disability. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017) (an examination is inadequate where examiner fails to estimate functional loss due to flare-ups based on all evidence, including lay statements). The Board further notes the examiner made little attempt to answer questions related to compliance with the Correia decision in the context of the Veteran’s examination. See Correia v. McDonald, 28 Vet. App. 158 (2016) (joints should be tested for pain on both active and passive motion, in both weight-bearing and non-weight-bearing). Therefore, a remand is necessary to obtain an examination that adequately assesses the current severity of the Veteran’s lumbar spine disability. 2. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity is remanded. 3. Entitlement to a TDIU prior to August 3, 2018, is remanded. The radiculopathy and TDIU issues are intertwined with the lumbar spine issue remanded above and are also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected lumbar spine disability. The claims file should be made available to and reviewed by the examiner, and all necessary tests should be performed. All findings should be reported in detail. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner MUST ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.