Citation Nr: 21022060 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 09-11 029A DATE: April 14, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1970 to November 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. In November 2017, the Board issued a decision, which, in pertinent part, denied an initial rating in excess of 20 percent for the Veteran’s lumbar spine disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court issued an Order vacating the portion of the November 2017 Board decision discussed above and remanding the matter for readjudication consistent with instructions outlined in a Joint Motion for Partial Remand (JMPR) by the parties. Subsequently, the Board remanded this case in April 2019, March 2020, and September 2020 for additional development. In March 2021, the Veteran submitted evidence of unemployability due to his service-connected lumbar spine disability. See March 2021 VA Form 21-8940. The Court has held that a claim for a TDIU is part and parcel of an increased rating claim when such is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the above, the issue of entitlement to a TDIU has been raised by the record and is within the jurisdiction of the Board. Unfortunately, the claims on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. 1. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is remanded. As an initial matter, the Board notes that subsequent to the November 2020 supplemental statement of the case (SSOC), additional VA treatment records pertinent to the Veteran’s claim were associated with the claims file. However, the RO did not issue another SSOC as required by 38 C.F.R. §§ 19.31, 19.37. Accordingly, remand is required for the RO to readjudicate the claim, with specific consideration of any additional pertinent evidence received since the November 2020 SSOC. Pursuant to the Board’s most recent remand, the Veteran underwent a VA thoracolumbar spine conditions examination in November 2020. At that examination, the Veteran reported to the VA examiner that he experiences current symptoms of pain in the lumbar spine that radiates down both legs with numbness in both feet, as well as occasional loss of control of the bowel and bladder. However, despite the Veteran’s reports of experiencing bowel and bladder problems, the VA examiner marked on the examination report that the Veteran does not have any neurological abnormalities or findings related to the thoracolumbar spine. The Board notes that the thoracolumbar spine conditions disability benefits questionnaire (DBQ) specifically instructs the examiner to complete the corresponding DBQ if any neurological abnormalities other than radiculopathy are identified on examination. The Board finds the November 2020 VA examination to be inadequate for the purpose of properly evaluating the current severity of the Veteran’s lumbar spine disability because the VA examiner did not attempt to assess whether the Veteran’s subjective complaints of experiencing bowel and bladder problems are associated manifestations of his lumbar spine disability. As such, on remand, the Veteran must be scheduled for a new VA examination that adequately evaluates the current severity of his lumbar spine disability, to include any associated neurological manifestations. In doing so, the VA examiner must thoroughly address all neurological abnormalities and symptoms reported by the Veteran, to include any bowel and bladder complaints, and discuss whether any such neurological findings are etiologically related to the Veteran’s lumbar spine disability. Finally, according to a December 2020 VA treatment record, the Veteran was scheduled to undergo an MRI of his lumbar spine. However, if this procedure was performed, the associated report and records have not yet been obtained. Therefore, on remand, the RO must obtain any outstanding VA treatment records, to include the outstanding December 2020 MRI report. 2. Entitlement to a TDIU is remanded. The Veteran’s TDIU claim is inextricably intertwined with the increased rating claim remanded by the Board in the decision herein. Thus, adjudication of the TDIU claim must be deferred pending adjudication of the Veteran’s increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to specifically include the report from an MRI of the lumbar spine performed in December 2020. 2. Then, schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to fully assess the current severity of his lumbar spine disability. The claims file, including a copy of this REMAND, must be made available to the examiner and it should be reviewed in its entirety. The examiner must elicit a full history of symptoms from the Veteran. Thereafter, the examiner is asked to provide the following: (a) Report the extent of the Veteran’s symptoms in accordance with VA rating criteria. (b) Conduct range of motion testing of the lumbar spine, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner must indicate the point at which pain begins. (d) 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 during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must indicate why. It should be noted that VA’s Clinicians Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. (e) Thoroughly address all neurological abnormalities reported by the Veteran or found on examination, including, but not limited to, bowel and bladder complaints. If an EMG or other study is required to objectively confirm the Veteran’s reported neurological manifestations, then such testing should be performed. If any neurological abnormality is identified and confirmed, the examiner must opine whether any such abnormality is at least as likely as not related to the Veteran’s lumbar spine disability. If the abnormality is deemed to be associated with the Veteran’s lumbar spine disability, then the examiner must complete the DBQ that corresponds to that disability. A full and complete explanatory rationale must be provided for any opinions offered. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must indicate whether this inability is due to a lack of knowledge among the medical community or based on a lack of procurable information. The Board reminds the examiner that failure to comply with the directives outlined herein renders an examination report inadequate and will result in further remand of the Veteran’s claims. 3. After completing the above actions, and any other development deemed necessary, readjudicate the issues on appeal, including the claim for a TDIU, with consideration of all evidence associated with the claims file since the November 2020 SSOC. If any benefit sought on appeal remains denied, issue the Veteran an SSOC and allow an appropriate time for response before returning the case to the Board for appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.