Citation Nr: 21011520 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-43 419 DATE: March 2, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to February 1992. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in September 2018 for further development to include a VA examination. The case has now returned to the Board for appellate review and, although it again regrets the further delay, the Board finds that additional remand is required. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds that the issue of entitlement to TDIU must be remanded for further development. As an initial matter, the Board finds that a new VA examination is necessary to determine the current level of severity of the Veteran’s lumbar spine and knee disabilities. Regarding the Veteran’s knee disabilities, the December 2013 examiner noted that the Veteran stated that he experienced increased pain every day for a few hours. See December 2013 VA Examination. Additionally, the May 2014 VA examiner noted that the Veteran’s flare-ups moderately affected his ability to function. However, neither examiner provided any estimations regarding the probable additional losses in functionality during a flare-up, which does not comply with the requirements of Sharp v. Shulkin. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). Based on the foregoing, the Board finds that these examinations are inadequate for assessing the degree to which the Veteran’s knee disabilities impact his ability to obtain or maintain gainful employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addressing the low back disability, the December 2013 examiner noted that the Veteran experienced flare-ups twice a week due to his lumbar spine disability. See December 2013 VA Examination. However, the December 2013 examiner did not provide any estimations regarding probable additional functional loss during a flare-up, which does not comply with the requirements of Sharp v. Shulkin. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). Additionally, the May 2014 VA examiner stated that the Veteran did not report flare-ups, but the Veteran reported them at the December 2013 VA examination. Further, the Board the December 2013 VA examiner noted that the Veteran had guarding that resulted in abnormal gait, whereas the May 2014 VA examiner found no guarding or muscle spasms. Based on the foregoing, the Board finds that these examinations are inadequate for adjudicative purposes.  See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, the Board finds that a remand is warranted for new VA examinations for the Veteran’s lumbar spine and knee disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The new VA medical opinions should provide estimations for additional functional loss during flare-ups of the Veteran’s knees and lumbar spine. The examiner should also determine whether there is evidence of guarding due to the Veteran’s lumbar spine disability. Further, the Board finds that an updated VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability (TDIU Application) is needed to adjudicate this claim. In December 2012, the Veteran submitted a TDIU application on which reported that his last full-time job was in October 2011 and that he was currently employed on a part time basis as a street cleaner. See December 2012 VA Form 21-8940. According to the income the Veteran listed on his December 2012 TDIU Application, the Veteran may at that time been earning marginal income as a street cleaner. See 38 C.F.R. § 4.16(b); see also, Ray v. Wilkie, 31 Vet. App. 58 (2019). However, the record also demonstrates that he is employed as a security guard. See December 2013 VA Examination; see also, March 2014 Statement in Support of the Claim. Pursuant to a September 2018 Board remand, the RO requested an updated TDIU application, but the Veteran did not respond. As eligibility for a TDIU rating is contingent on the Veteran’s ability to obtain and maintain substantially gainful employment, clarification of the Veteran’s employment history is required. Therefore, an updated TDIU application is needed to adjudicate this claim. The Board reminds the Veteran that a failure to return the VA Form 21-8940 may result in a future denial. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran’s own descriptions of the history of his lumbar spine and bilateral knee disabilities. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected lumbar spine and knee disabilities. Perform all appropriate testing for the Veteran’s service-connected orthopedic disabilities. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee and lumbar spine disabilities, and how he or she characterizes the additional functional loss during a flare-up. (b.) If the Veteran describes experiencing flare ups, identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors. (c.) For the Veteran’s knee disabilities, based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to 30 degrees (the measurement required for the next higher rating). Please explain why or why not. (d.) For the Veteran’s knee disabilities, based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 45 degrees or less (for flexion) or 10 degrees or more (for extension). Please explain why or why not, (e.) For the Veteran’s knee disabilities, based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. (f.) For the Veteran’s knee disabilities, the examiner must also discuss whether there are any functional effects resulting in any limitations on the Veteran’s ability to perform any type of occupational tasks. (g.) For the Veteran’s lumbar spine disability, please comment on whether there is unfavorable ankylosis of the entire thoracolumbar spine. (h.) For the Veteran’s lumbar spine disability, please comment on whether there is evidence of guarding or muscle spasms. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). 2. Request that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Foster 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.