Citation Nr: 21023268 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-16 326 DATE: April 20, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent prior to September 29, 2020 and in excess of 40 percent, thereafter, for a service connected back disability is remanded. Entitlement to a total disability rating based on individual unemployability prior to November 6, 2019 is remanded. REASONS FOR REMAND The Veteran had active service from April 1988 to August 1988 and from December 1990 to May 1991 This case is before the Board of Veterans’ Appeals (Board) on appeal of a rating decision in May 2009 that increased the Veteran’s disability rating for his back condition from 10 to 20 percent. It was most recently remanded in August 2020, after which the Veteran was granted an increased disability rating of 40 percent effective September 29, 2020 for his back disability. The procedural history also includes two Joint Motions for Remand (JMR) granted by the United States Court of Appeals for Veteran’s Claims (the Court) in 2013 and 2017, as well as three Board remands in 2013, 2017, and 2018. The case returned to the Board after a December 2020 Supplemental Statement of the Case was issued. 1. Increased Disability Rating for a Back Disability. Unfortunately, another remand is necessary. The Veteran has argued that the record lacks adequate information as to the period prior to November 2019 for rating the Veteran’s disability as the examinations in 2009 and 2017 were declared inadequate in the 2017 JMR. Although there were examinations in November 2019 and September 2020, they were limited to a discussion of present symptoms. No retroactive opinion was requested or provided. See Chotta v. Peake, 22 Vet. App. 20 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). No explanation as to why such a retroactive medical evaluation would not be warranted was provided. When the record is ambiguous as to whether sufficient information is obtained, the Board has a duty to remand for further development. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, a remand is necessary to obtain a retroactive medical examination to determine the nature and severity of the Veteran’s back disability prior to September 29, 2020. It is also noted that VA has reason to believe there are outstanding treatment records since the September 29, 2020 examination. The Veteran reported that his condition was worsening and there was a pending MRI that might indicate he needs to have lumbar spine surgery. Further, an October 2020 treatment note indicates the Veteran’s physical therapy evaluation indicated he should have a surgical evaluation. Therefore, upon remand, proper attempts should be made to obtain any outstanding medical records. 2. TDIU Prior to November 6, 2019. The issue of entitlement to a TDIU prior to November 6, 2019 is part and parcel to the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, it is inextricably intertwined with the remanded issue; and accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Obtain and associate with the record any outstanding VA treatment records since October 2020. 2. Request that the Veteran identify any outstanding private treatment records, to include any MRIs of his back or surgical consultations he has received since September 2020. 3. After the requested development has been completed, schedule the Veteran for an examination to retroactively determine the severity of the Veteran’s back disability. The examiner should provide responses to the following questions by utilizing available medical records, the Veteran’s statements, and the examiner’s medical knowledge. The examiner should elicit information regarding the frequency, severity, and duration of any flare-ups, and the degree of functional loss during flare-ups or on repeated use overtime where the record is insufficient to provide that information. If the examiner determines the elicited information is inconsistent with the record, the examiner should provide an explanation as to why that conclusion was reached, to include any treatment records and/or medical knowledge that supports the conclusion. If for any reason the examiner is not able to provide the requested responses, the examiner should state whether that inability 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). (a.) Was there any period prior to November 6, 2019, when it was at least as likely as not that the severity of the Veteran’s back disability, to include flare-ups, was more severe than noted at the November 2019 examination? (b.) If so, to the extent possible, identify any such periods along with a statement estimating the functional loss, to include estimated range of motion, for any period identified. (c.) Was there any period prior to November 6, 2019, when it was at least as likely as not that the severity of the Veteran’s back disability, to include flare-ups, was consistent with that noted at the November 2019 examination? (d.) If so, to the extent possible, identify any such periods. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.