Citation Nr: 21014288 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-34 671 DATE: March 11, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran’s service-connected lower back disability for the period prior to September 16, 2019, and in excess of 20 percent, thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1976 to September 1979, and in the United States Navy from November 1979 to July 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in October 2020, it was remanded for additional development. Specifically, the RO was instructed to undertake the appropriate development to attempt to obtain the Veteran’s private treatment records. The RO undertook the appropriate steps to attempt to obtain the private treatment records. As such, the Board finds that the AOJ substantially complied with the directives in the October 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Lower Back The record contains a September 2019 VA examination regarding the Veteran’s claimed worsening back disability; however, this examination does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board specifically notes that the examiner failed to discuss the Veteran’s passive range of motion and non-weight bearing. As such, the Board finds that the Veteran must undergo another examination in light of the requirements of Correia and Sharp. TDIU Finally, the Board notes the issue of entitlement to a TDIU rating must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lower back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the lower back disability and comment on the effect of the lower back disabilities on any occupational functioning and activities of daily living. (d.) 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. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Then, notify the Veteran as to what information or evidence is needed to substantiate his TDIU claim pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, the Veteran should be requested to complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), and if necessary, a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.