Citation Nr: 21013695 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 11-02 552 DATE: March 10, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability since January 27, 2011, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) prior to April 13, 2018 is remanded. REASONS FOR REMAND The Veteran had active service from June 1973 to June 1976 and from October 1976 to October 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The RO in Detroit, Michigan, certified the appeal to the Board. In March 2017, the Board denied entitlement to increased ratings for a lumbar spine disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2017, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication. Additionally, the matter of entitlement to a TDIU was previously before the Board in March 2017, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In August 2020, while the case was in remand status, the AOJ granted a TDIU, effective April 13, 2018. The issue on appeal has been recharacterized accordingly. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of an increased rating for a lumbar spine disability since January 27, 2011 was again before the Board in November 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In May 2014, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) that is no longer available to participate in the Veteran’s appeal. 38 U.S.C. § 7107; 38 C.F.R. § 20.106. A transcript of that hearing has been associated with the record. In November 2020, the Veteran was notified that the VLJ was no longer available to participate in his appeal and that he had a right to a new hearing. The Veteran elected not to appear at another Board hearing and for his case to be considered based on the evidence of record. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claim and to afford him every possible consideration. Lumbar Spine Disability since January 27, 2011 The November 2018 Board remand directed the AOJ to afford the Veteran a VA medical examination for his lumbar spine disability. The Board instructed the examiner to test for range of motion of the lumbar spine, including testing of the Veteran’s passive range of motion and in weight-bearing and nonweight-bearing states. The Board further instructed the examiner to provide an estimate of the functional loss during flare-ups based on information in the medical records and elicited from the Veteran. The Veteran was afforded a VA examination in July 2020. In the July 2020 VA examination report, the examiner noted the Veteran’s range of motion was limited, with pain noted on forward flexion and extension. Unfortunately, the degree at which pain occurred during range of motion testing was not noted in the examination report. Additionally, the examination report indicates that it was not safe to test passive range of motion; however, it does not appear the examiner tested the range of motion of the Veteran’s spine in weight-bearing and nonweight-bearing. Moreover, the examination report does not include an explanation regarding whether the examiner was unable to conduct these tests or whether these tests were not required. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The July 2020 VA examiner further indicated the Veteran reported pain with repetitive use and flare-ups of his lumbar spine that resulted in additional loss of function or range of motion. However, the examiner indicated that the examination was not being performed during a flare-up, and he was unable to describe the additional functional loss in terms of range of motion because of the varying intensity of the flare-ups. While the Veteran’s flare-ups may indeed vary in intensity, the examiner did not fully explain why such variation prevents any estimated range of motion loss. The Court has 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). 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. The VA examiner did not adequately address whether his inability to provide an opinion concerning flareups without resorting to speculation reflected the limitation of knowledge in the medical community at large and not a limitation of the individual examiner As the Veteran’s lumbar spine disability will be evaluated on remand, which will include consideration of neurological symptoms, the examiner should clarify whether the Veteran has radiculopathy associated with his lumbar spine disability. In this regard, during the March 2018 VA examination, the examiner noted the presence of radicular symptoms, specifically involvement of the sciatic nerve of mild severity in the bilateral lower extremities. During the July 2020 VA examination, the examiner noted the Veteran’s complaints but indicated that the Veteran did not exhibit radiculopathy. VA treatment records are also conflicting. The Veteran’s complaints of radicular pains have been diagnosed in VA treatment records as lumbar radiculopathy. See, e.g., September 2014 and October 2015 VA treatment records. However, other records indicate no evidence for lumbar radiculopathy. See December 2019 VA treatment record. Because the record is unclear as to whether the Veteran has lower extremity radiculopathy associated with his lumbar spine disability, further development is in order. TDIU prior to April 13, 2018 The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the pending increased rating claim for the Veteran’s lumbar spine disability. Consequently, it must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar spine disability by an appropriately qualified examiner. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should provide current findings regarding all symptoms associated with the service-connected lumbar spine disability and should opine as to its severity. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his lumbar spine disability symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner. The examiner should also assess the severity of all neurologic manifestations of the Veteran’s service-connected lumbar spine disability, to specifically include whether the Veteran has associated radiculopathy. The examiner should comment on the extent of any functional impairment caused by the Veteran’s service-connected lumbar spine disability, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal, including the inextricably intertwined issue of entitlement to a TDIU, should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.