Citation Nr: 21014208 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 11-11 501 DATE: March 11, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbar strain prior to July 29, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 3, 2011, is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or by reason of being housebound prior to January 3, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board, in relevant part, denied entitlement to a rating in excess of 10 percent for lumbosacral strain prior to July 29, 2014. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties to vacate and remand the portion of the Board’s October 2019 decision that denied entitlement to a rating in excess of 10 percent for lumbosacral strain prior to July 29, 2014. 1. Entitlement to an increased rating for lumbar strain prior to July 29, 2014 In the August 2020 Joint Motion, the parties agreed that the Board must address whether a retrospective examination is necessary for the Veteran’s lumbar spine disability to address her functional loss, if any, on flare-ups or repetitive use. The Board notes that the July 2010 VA examination did not adequately address whether pain could significantly limit functional ability during flare-ups or upon repetitive use. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (requiring that examiners attempt to elicit information regarding the severity, frequency, and duration of flare-ups, including, if possible, degrees of additional loss of motion during flare-ups). In this regard, during the July 2010 VA examination, the Veteran reported having continuous back pain with periods of worsening pain. The examiner stated that repetitive movements could increase the Veteran’s pain and cause weakness, fatigue, and lack of endurance. However, the examiner did not estimate any functional loss in terms of additional degrees of limited motion with repetitive use over time. In addition, the examiner noted that there was pain on examination for range of motion testing. However, the examiner did not identify the points at which pain was observed. The Board also notes that the July 2010 VA examination does not fully comply with Correia v. McDonald, 28 Vet. App. 156 (2016). In this regard, the July 2010 VA examination did not include range of motion testing on passive range of motion, weight-bearing, and nonweight-bearing. The Board is not permitted to base its decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, a retrospective medical opinion is needed to help the Board assess the severity and manifestations of the Veteran’s service-connected lumbar spine disability. See Chotta v. Peake, 22 Vet. App. 80 (2008). 2. Entitlement to TDIU and SMC based on the need for regular aid and attendance and/or by reason of being housebound prior to January 3, 2011 Historically, in a September 2016 rating decision, the RO granted entitlement to a TDIU effective from December 10, 2015. The RO also granted entitlement to SMC under 38 U.S.C. § 1114(s) based on the Veteran’s service-connected PTSD rated as 100 percent disabling and additional detrusor instability with intermittent incontinence independently ratable as 60 percent or more. In a March 2018 rating decision, the RO granted entitlement to SMC under 38 U.S.C. § 1114(s) effective from July 29, 2014, based on PTSD rated as 100 percent disabling prior to December 10, 2015, and based on TDIU for a single disability with additional disabilities independently ratable at 60 percent or more thereafter. In the August 2020 Joint Motion, the parties agreed that the Board erred by failing to properly consider whether the issue of entitlement to TDIU prior to December 2015 was reasonably raised by the evidence of record as part and parcel of the Veteran’s increased rating claim. The parties also agreed that the Board erred by failing to discuss whether the Veteran is entitled to SMC under 38 U.S.C. § 1114(s). In a September 2020 rating decision, the RO granted an earlier effective date of January 3, 2011, for the award of SMC pursuant to 38 U.S.C. § 1114(s). In so doing, the RO stated that September 2016 and March 2018 rating decisions assigned the incorrect effective date for the grant of SMC based on housebound status. The RO determined that a continuous award of SMC based on housebound status was warranted effective from January 3, 2011. The Board notes that the presence of a 100 percent disability rating does not necessarily render the issue of TDIU moot. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain a TDIU rating, even where a 100 percent schedular rating has also been granted. As discussed above, the RO granted entitlement to TDIU effective from December 10, 2015. The Veteran’s claim for TDIU spans the entire period on appeal. See Harper v. Wilkie, 38 Vet. App. 356 (2018). However, the Veteran has also been awarded SMC at the housebound rate since January 3, 2011. As the Veteran has already been awarded SMC at the rate under U.S.C. § 1114(s) (the only remaining benefit for which the assignment of a TDIU evaluation would be beneficial), the issue of entitlement to a TDIU on and after January 3, 2011 is moot. See 38 C.F.R. § 4.16(a); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley, 22 Vet. App. at 293-94. Nevertheless, the issues of entitlement to a TDIU and SMC under 38 U.S.C. § 1114(s) prior to January 3, 2011, and perhaps to additional SMC remain on appeal. The Board also notes that the issues of entitlement to TDIU and/or SMC are inextricably intertwined with the Veteran’s increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Therefore, a remand is necessary. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate examiner regarding the nature and severity of the Veteran’s service-connected lumbar strain during the period on appeal prior to July 29, 2014. The entire claims file should be made available to and be reviewed by the examiner. The examiner should report all signs and symptoms necessary for rating the Veteran’s service-connected lumbar spine strain prior to July 29, 2014. (a) The examiner is asked to provide a retrospective opinion to estimate the degree of range of motion for passive motion, weight-bearing, and non-weight-bearing. (b) The examiner is asked to estimate, if possible, the additional impairment (in terms of range of motion) due to pain based the evidence of record and the Veteran’s statements for the July 2010 VA examination. (c) The examiner should also describe whether pain significantly limited functional ability when the joint was used repeatedly over a period of time or during flare-ups, and indicate range of motion (the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources). If there was no pain and/or no limitation of function, such facts must be noted in the report. (d) While a current examination would not be fruitful in addressing the period prior to July 29, 2014, the examiner may contact the Veteran to solicit information as to the functional limitation she remembers experiencing. (Continued on the next page)   All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.