Citation Nr: 21015647 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-18 129 DATE: March 18, 2021 REMANDED Entitlement to a rating in excess of 40 percent for lumbar strain is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1977 to December 1979. The Veteran appeared at a June 2017 videoconference hearing before one of the undersigned Veterans Law Judges. The hearing transcript is of record. The Veteran appeared at a November 2020 videoconference hearing before another of the undersigned Veterans Law Judges. The hearing transcript is of record. The Veterans Law Judges who conduct hearings in a veteran’s appeal must participate in making the final determination of the claims involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102(a). When an appellant has a Board of Veterans’ Appeals (Board) hearing before two separate Veterans Law Judges during the pendency of an appeal and those hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. An appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In January 2021, the Board notified the Veteran of the right to a hearing before a third Veterans Law Judge. The Veteran was informed that if he did not respond within 30 days of the date of the Board’s letter, the Board would presume that he did not want a third hearing. No response was received from the Veteran. In January 2019, the Board granted a “disability rating of 40, but no higher” for lumbar strain. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims. In January 2020, the United States Court of Appeals for Veterans Claims granted the Parties’ January 2020 Joint Motion for Partial Remand; vacated that portion of the January 2019 Board decision which denied a rating in excess of 40 percent for lumbar strain; and remanded the Veteran’s appeal to the Board for action consistent with the Joint Motion for Partial Remand. At the November 2020 Board hearing, the Veteran raised the issue of entitlement to TDIU. When entitlement to TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, entitlement to TDIU is on appeal and will be addressed below. 1. Entitlement to a rating in excess of 40 percent for lumbar strain is remanded. The January 2020 Joint Motion for Partial Remand found that the report of a December 2017 Department of Veterans Affairs (VA) spine examination was inadequate for rating purposes and directs that the Veteran’s appeal should be remanded for further VA spine evaluation. The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims’ January 2020 Order granting the Joint Motion for Partial Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with the Court’s order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Clinical documentation dated after March 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. The claim is inextricably intertwined with other issue being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for the service-connected lumbar spine disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA clinical documentation not already of record, including treatment records dated after March 2019. 3. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the current nature and severity of the service-connected lumbar spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine for weight-bearing and nonweight-bearing. The examiner should indicate the degree of lumbar spine motion at which any observed pain begins. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b) Indicate to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare ups or with repeated use. (c) State whether or not there is any ankylosis of the spine or any segment of the spine. (d) Note any incapacitating episodes associated with the lumbar spine disability and the duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (Continued on the next page)   (e) Describe any identified right or left lower extremity neurologic disabilities caused by the service-connected lumbar spine disability, the nerves affected, and the level of impairment. (f) Opine as to the impact of the service-connected lumbar spine disability on the Veteran’s vocational pursuits. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.