Citation Nr: 21010859 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 11-18 062 DATE: February 25, 2021 REMANDED The issue of entitlement to a disability rating in excess of 10 percent, prior to November 5, 2014, and in excess of 40 percent, from November 5, 2014, for degenerative disc disease and degenerative joint disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to April 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board denied entitlement to a rating in excess of 10 percent for a low back disability prior to November 5, 2014 and denied entitlement to a rating in excess of 40 percent thereafter. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted an October 2020 Joint Motion for Remand (JMR), vacated the December 2019 Board decision and remanded the issue to the Board for readjudication. In addition, a December 2016 rating decision granted entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) and assigned an effective date of February 23, 2016. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue rendered her unemployable prior to February 23, 2016. Accordingly, the Board concludes that a claim for TDIU, prior to February 23, 2016, has not been raised. Entitlement to higher disability ratings for low back disability. The Veteran seeks entitlement to higher disability ratings for his service-connected low back disability. The parties to the October 2020 JMR agreed that the Board erred in the December 2019 decision by relying on a November 2014 VA examination that did not adequately detail whether the Veteran experienced flare-ups or functional loss due to flare-ups. Specifically, the November 2014 VA examiner checked “no” in response to a question asking whether the Veteran reported that flare-ups of his low back disability impacted his back function. However, later in the report, the examiner wrote that “[i]t is not possible to determine without resorting to mere speculation if additional limitation of motion is present due to pain during flare-ups or when joint is used repeatedly over a period of time.” As such, it is not clear whether the Veteran experiences flare-ups and, if he does, what the nature of those flare-ups are in terms of their extent, duration, and severity. Accordingly, the parties agreed that remand is necessary for clarification of the November 2014 VA examination through an addendum opinion or a new opinion that is clear regarding whether the Veteran experienced flare-ups or function loss due to flare-ups. The parties further agreed that on remand a retrospective opinion needs to be obtained regarding testing for pain under 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 168 (2016) since there is no evidence that the January 2011 or November 2014 VA examiners conducted this testing. Additionally, the parties to the October 2020 JMR agreed that the Board erred in the December 2019 decision by relying on an October 2019 VA examination that did not explain why passive range of motion testing was not feasible. Specifically, the October 2019 VA examiner stated that there was “objective evidence of pain when the back is used in non-weight bearing,” but the VA examiner also indicated, without explanation that passive range of motion testing could not be performed or is not medically appropriate. As such, the parties agreed that remand is warranted to obtain an adequate examination that complies with the requirements of 38 C.F.R. § 4.59. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected low back disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected low back disability. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the low back. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s low back, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. (c.) Pursuant to the October 2020 JMR, the VA examiner should provide an opinion whether, during the November 2014 VA examination, the Veteran experienced flare-ups or functional loss due to flare-ups. If so, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible, or the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experienced additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. (Continued on the next page)   (d.) Pursuant to the October 2020 JMR, the VA examiner should provide a retrospective opinion regarding testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the low back, prior to November 2014. In providing the retrospective opinion, the examiner should note whether, upon repetitive motion, there was any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there was likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there was no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (Continued on the next page)   2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether higher disability ratings for the Veteran’s service-connected low back disability may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.