Citation Nr: 21013077 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 07-09 587 DATE: March 8, 2021 REMANDED Entitlement to a rating in excess of 20 percent for mechanical low back pain with degenerative changes of the lumbosacral spine is remanded. Entitlement to ratings for left lower extremity radiculopathy in excess of 10 percent from August 28, 2003 to June 13, 2014 and in excess of 20 percent from June 13, 2014, is remanded. Entitlement to ratings for right lower extremity radiculopathy in excess of 10 percent from June 27, 2009 to June 13, 2014 and in excess of 20 percent from June 13, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), from October 1, 2003 to January 5, 2005, is remanded. REASONS FOR REMAND The Veteran had active service from May 1974 to March 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2005 and August 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2010 and April 2014, the Board remanded this case to the RO (regarding solely the low back disability ratings claim). A July 2015 Board decision denied increased ratings for the low back and left and right lower extremity radiculopathy disabilities (and remanded the TDIU matter to the RO for further development). The Veteran appealed the Board denials to the United States Court of Appeals for Veterans Claims (Court). In an April 2016 Order, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating the Board decision as to the low back and radiculopathy matters and remanding the case to the Board for action consistent with the JMPR. Those matters were, in turn, remanded by the Board to the RO for further development in June 2016. The case was once again before the Board in August 2018, when it was remanded for further development. 1. Back Disability and Lower Extremity Radiculopathy The Veteran asserts that his back disability and lower extremity radiculopathy are worse than currently rated. The Board regrets the additional delay, but it must, once again, remand the claim before it can be adjudicated. In an August 2020 Disability Benefits Questionnaire (DBQ) addendum, the examiner stated, in part, that “0 degrees of [range of motion (ROM)] during flare is when the Veteran has to ‘rest’ when he has considerable back pain. This was perceived as 0 degrees of ROM during flare. However, this is not satisfactory as for Mitchell criteria which is also as repeated use over time. Thus, Veteran’s ROM when flare ‘thus Veteran’s ROM when flare and during repeated used over time are at least as likely similar to his identified ROM during his respective VA evaluations dated 11/22/03, 5/17/08, 10/27/10, 6/13/14, 2/15/17 & 8/7/19, respectively. Rationale is that ‘rest’ to alleviate his back flare is not considered 0 degrees of ROM (or ankylose).” See Addendum/Clarification DBQ, August 20, 2020. Unfortunately, the Board is unable to understand the examining physician’s opinion or rationale and is unable to ascertain what the examiner meant when he issued it. An addendum with an explanation and clarification is necessary before the claims can be adjudicated. On remand, the examiner should describe how the Veteran’s low back disability limited his functional ability during flare-ups over this period of time. The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Sharp v. Shulkin, 29 Vet. App. 26 (2017). It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. 2. TDIU The issue of entitlement to TDIU is inextricably intertwined with the other issues currently pending at the AOJ. The TDIU issue is intertwined with the other issues because the Veteran asserts that he is unemployable due to his service-connected disabilities. Thus, the Board finds that adjudication of the TDIU claim must be deferred pending resolution of the reduction claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Return the claims file to the examiner who issued the August 2020 DBQ Addendum for an additional opinion, if available. If the August 2020 examiner is unavailable, obtain an opinion from an appropriate provider. The need for another examination is left to the discretion of the examiner providing the opinion. A complete and detailed rationale should be given for all opinions and conclusions expressed. The examiner should once again review the claims file and prior to providing an opinion. 2. Pursuant to Sharp v. Shulkin, inquire whether there are periods of flare-ups. If the answer is “yes,” state their severity, frequency, and duration. Also name the precipitating and alleviating factors. In addition, estimate, “per [the] Veteran,” to what extent, if any, they affect functional impairment. For this question, consider the period from August 2003 to the present. 3. Readjudicate all issues. M. MCPHAULL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.