Citation Nr: 21022668 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-24 361 DATE: April 19, 2021 REMANDED Entitlement to service connection for a kidney disability is remanded. Entitlement to a 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 had active duty service from October 1975 to December 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, increased the rating for the Veteran’s lumbar spine disability to 20 percent and denied service connection for a kidney disability. In a March 2020 decision, the Board denied entitlement to a rating in excess of 20 percent for a lumbar spine disability and remanded the issue of service connection for a kidney disability. The Veteran appealed the March 2020 Board denial to the US Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a Joint Motion for Partial Remand (JMR), which vacated and remanded the issue of entitlement to an increased rating for the Veteran’s lumbar spine disability. CAVC granted the JMR in an order entered in November 2020. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, a June 2017 VA examination indicated that the Veteran’s lumbar spine disability impacted his ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (“[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.”). 1. Entitlement to service connection for a kidney disability is remanded. Throughout the rating period on appeal, the Veteran has been assessed with kidney stones, renal cyst of the left side, and chronic kidney disease. The Veteran’s service-treatment records reveal discolored and cloudy urine in November 1999. In October 1999 he was assessed with hematuria and was scheduled for a transurethal resection of the bladder tumor. In January 2000 he complained of abdominal pain status post bladder surgery. In June 2000 the Veteran indicated that he was passing blood before his tumor was removed. Following service, a notation in October 2002 discusses a past history of renal stones. It is unclear if the notation indicates no past history of renal stones or a history of renal stones. In August 2004 a CT [computerized tomography] scan of the abdomen revealed a small 1-2 mm stone. An October MRI [magnetic resonance imaging] of the kidneys revealed a simple cyst in the lower pole of the left kidney. In October 2004 he was assessed with hematuria with an unclear etiology and a questionable history of stones. Pursuant to the Board’s remand instructions, a medical opinion was obtained in March 2020. However, the Board finds that this opinion is insufficient to determine the present claim. In this regard, the examiner merely recited his history of kidney stones and kidney cyst without providing an opinion and rationale as to the etiology of his kidney stones and kidney cyst. Moreover, the examiner failed to discuss or mention his diagnosis of chronic kidney disease. Accordingly, the Board finds that a new medical opinion is warranted on remand. 2. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran underwent a VA examination in June 2017 to assess the severity of his service-connected lumbar spine disability. Although the Veteran reported flare ups of pain, the examiner concluded that she was unable to provide an opinion regarding his range of motion loss during a flare without mere speculation. A recent decision issued by the United States Court of Appeals for the Veterans’ Claims (CAVC) addressed what constitutes an adequate explanation of an examiner’s ability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the Court 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. It also held that 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. Accordingly, the Board finds that a new VA examination is warranted in order to assess the severity of the Veteran’s service-connected lumbar spine disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). The VA examination in June 2017 indicated that the Veteran’s service-connected lumbar spine disability impacted his ability to work. In 2018 he reported that he was unemployed. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from May 2020 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand, to an appropriate clinician to provide an opinion as to the nature and etiology of his kidney disability. If an opinion cannot be rendered without a VA examination, one should be scheduled. The claims file, including a copy of this remand, should be reviewed and associated with the claims file. The examiner should identify and discuss all kidney disabilities identified during the pendency of his claim, including kidney stones, renal cyst of the left side, and chronic kidney disease. For each diagnosed disability, the examiner should respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s kidney disability had its onset in and/or is otherwise etiologically related to his period of active service? If possible, the examiner should discuss whether the October 2002 treatment record reveals a past history of renal stones. If service connection is found, the examiner should discuss the impact, if any, on his ability to work. The examiner must provide a comprehensive rationale for each opinion provided.  The examiner should discuss the Veteran’s service-treatment records and post-service treatment records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record.  3. After completion of #1, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability.  The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history.  Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any.  Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted and recorded.  If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply.  The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement.  The extent of additional limitation should be expressed in degrees.  Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss.  If so, he or she should estimate the degree of lost motion during such flare-ups.  The 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 cannot be given.  Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner.  If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident.  The examiner should provide an opinion as to whether there is favorable or unfavorable ankylosis of the thoracolumbar or entire spine. The examiner should also note whether the Veteran suffers from intervertebral disc syndrome and, if so, whether he is prescribed bed rest and treatment by a physician. The examiner should discuss the impact of his lumbar spine disability, if any, on his ability to work. The examiner must provide a comprehensive rationale for each opinion provided.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record.  4. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.