Citation Nr: 21013352 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-27 385 DATE: March 9, 2021 REMANDED The claim of entitlement to a disability rating in excess of 20 percent for a low back disorder is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from June 1967 to December 1968. In a September 2019 decision, the Board denied the claim of entitlement to a rating in excess of 20 percent for the Veteran’s low back disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed to vacate the Board’s September 2019 decision and remanded the case to the Board for action consistent with JMR. The JMR was incorporated by reference in a Court order dated in July 2020. A claim for TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. The claim of entitlement to a disability rating in excess of 20 percent for a low back disorder is remanded. In the JMR, the Court found that the Board erred when it did not comply with the March 2018 Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2018, the Board remanded the claim for a VA examination that complied with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board instructed the VA examiner to describe the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors and to what extent, if any, such flare-ups affect functional impairment. Pursuant to the Board remand, an examination was provided in May 2019. Unfortunately, the examination did not comply with the Board’s remand instructions. Accordingly, a remand is required to obtain another VA examination. 2. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The parties also agreed that the Board failed to adjudicate the Veteran’s claim of entitlement to a TDIU. The record does not contain a VA Form 21-8940 or comparable information to determine the Veteran’s employment and educational history. On remand, the Veteran should be provided a VA Form 21-8940 and the AOJ should undertake all appropriate development and then adjudicate the Veteran’s TDIU claim. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the AOJ must provide the Veteran with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 3. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected low back disorder. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed. The AOJ should ensure that the examiner provides all information required for rating purposes, under both the old and revised rating criteria. The examiner should record the results of range of motion testing for pain on both active and passive motion, as well as on weight-bearing and nonweight-bearing. The examiner is also requested to review the VA examination containing range of motion findings pertinent to the Veteran’s low back conducted during the course of the appeal. If the examiner is unable to do so, he or she should explain why. The examiner is specifically asked to set forth the extent of any functional loss due to weakened movement, excess fatigability, incoordination, pain on use, swelling, deformity, or atrophy of disuse. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. This query should be accomplished regardless of whether the Veteran is experiencing a flare-up at the time of testing or not. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 4. Then, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.