Citation Nr: 21010123 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-14 373 DATE: February 24, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for lumbar spine multilevel disc desiccation with herniated extruded nucleus pulposus on the right at L4/L5 and paravertebral muscle spasms is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 24, 2010 is remanded. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from July 1981 to December 1981, and then from November 1994 to September 2006. These matters come to the Board of Veterans’ Appeals (Board) from September 2010 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. In a May 2010 rating decision, the Board, in part, denied an initial disability rating in excess of 20 percent for lumbar spine multilevel disc desiccation with herniated extruded nucleus pulposus on the right at L4/L5 and paravertebral muscle spasms. In an August 2020 VA Form 10182, the Veteran attempted to challenge the low back disability determination in the modernized review system; however, that form was untimely so this issue will remain as part of a Legacy appeal. Finally, in a February 2021 decision, the Board vacated that part of the prior decision after discovery of a due process error. Thus, that issue remains before the Board. 1. Entitlement to an initial disability rating in excess of 20 percent for lumbar spine multilevel disc desiccation with herniated extruded nucleus pulposus on the right at L4/L5 and paravertebral muscle spasms is remanded. In an August 2020 statement in support of claim, the Veteran stated he has been having pain in his low back when he gets up in the morning and is unable to sit or stand for long periods of time due to pain and stiffness. He described the pain as "very painful". In light of his report of worsening, the Board finds that another VA examination is necessary to adjudicate this claim. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 24, 2010 is remanded. Because this appeal has been pending prior to November 24, 2010, and a decision on the remanded issue of an increased disability rating fr the lumbar spine could significantly impact a decision on the issue of TDIU prior to November 24, 2010, the issues are inextricably intertwined and a remand is required. 3. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine is remanded. As to the claim of entitlement to initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine, the Veteran submitted a timely notice of disagreement with a May 2017 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine multilevel disc desiccation with herniated extruded nucleus pulposus on the right at L4/L5 and paravertebral muscle spasms. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the 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), or the examiner (does not have the knowledge or training). In so doing, 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), or the examiner (does not have the knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.