Citation Nr: 21023835 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-17 018A DATE: April 21, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative facet and disc disease of the lumbar spine is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from March 1986 to July 1995. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The RO reduced the Veteran’s evaluation from 20 percent to 10 percent effective September 1, 2015. A February 2019 Board decision restored the Veteran’s 20 percent rating, and remanded the matter of entitlement to an increased disability rating for further development. The Board denied the Veteran’s increased rating claim in a July 2019 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Memorandum Decision, the Court vacated the Board’s denial of the Veteran’s lumbar spine disability claim. The Court remanded the above issue to the Board to correct established duty to assist errors, to include reliance on inadequate VA examinations. Although the Board regrets further delay, remand is necessary to provide the Veteran with every possible consideration in accordance with the Court’s Order. Further development is necessary prior to appellate review to provide the Veteran with adequate VA medical opinions addressing her lumbar spine disability. 1. Entitlement to a disability rating in excess of 20 percent for degenerative facet and disc disease of the lumbar spine is remanded. Remand is required to provide the Veteran with a medical opinion that adequately addresses the functional impairment and limitation of motion incurred with repetitive use over time and during flare-ups. A VA examination must express an opinion on whether pain could significantly limit functional ability during flareups or upon repetitive use. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The examiner should express the limitation of functional ability in terms of the degree of additional range-of-motion loss during flareups or upon repetitive use. Id. Even if the Veteran is not experiencing a flare-up of the relevant musculoskeletal disability at the time of the examination, VA examiners must attempt to estimate additional functional loss during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA’s duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A. An examination must express an opinion on whether pain could significantly limit functional ability during flareups or upon repetitive use. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The examiner should express the limitation of functional ability in terms of the degree of additional range-of -motion loss during flareups or upon repetitive use. Id. Even if the Veteran is not experiencing a flare-up of the relevant musculoskeletal disability at the time of the examination, VA examiners must attempt to estimate additional functional loss during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, a VA medical opinion is necessary to determine the extent of the Veteran’s functional impairment caused by the Veteran’s lumbar spine disability during flare-ups. Id. at 32. Additionally, remand is necessary to include testing for pain on both active and passive motion of the Veteran’s lumbar spine, in weight-bearing and nonweight-bearing, required under 38 C.F.R. § 4.59. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Board acknowledges the Veteran’s reported history of increased symptoms of her lumbar spine disability during flare-ups. Specifically, the Veteran has reported during her VA examinations that flare-ups are very painful, and during flares, sometimes her back locks up. The Veteran has submitted lay evidence in the May 2017 VA Form 9, stating that some days she finds it hard to flex her back, and during times when her back locks up, she cannot flex it at all. The Board also acknowledges the Veteran’s assertions that the severity of her symptoms warrants an increased rating. As a lay person the Veteran is competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report her symptoms, any opinion regarding whether the Veteran’s symptoms have worsened to a certain severity or level of functional impairment requires medical expertise that the Veteran has not demonstrated. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Thus, without a medical opinion that clearly addresses the relevant facts and medical science of the Veteran’s lumbar disability, the Board is left to rely on its own lay opinion, which it is forbidden from doing. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, a VA medical examination is required to ensure Correia compliance and to address the Veteran’s disability during flare-ups and with repetitive use over time. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Pursuant to the Court’s order, upon remand, the Veteran may raise any additional argument for the Board to consider. See Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). In March 2021 correspondence, the Veteran raised the contention that the Board erred in not considering the evidence of neurological symptoms associated with the Veteran’s lumbar spine disability. As the Board is forbidden from making medical findings necessary to resolve the Veteran’s claim without citations to expert medical evidence sufficient to support those findings, remand is required to obtain a VA medical opinion addressing the Veteran’s claimed radicular symptoms associated with the service-connected lumbar spine disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Additionally, in the March 2021 correspondence, the Veteran raised the contention that her service-connected disabilities adversely affected her sustained employment, as to warrant a separate total disability rating. The Board finds that the Veteran’s claim for a TDIU is inextricably intertwined with the remanded increased rating claim, as the outcome of the other claim could have a substantial effect on the necessary schedular rating criteria under 38 C.F.R. § 4.16(a). Therefore, the Veteran’s claim of TDIU must also be remanded pending adjudication of this claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the severity of her service-connected degenerative facet and disc disease of the lumbar spine. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should be given access to the entire claims file and should note review of it prior to issuing an opinion. All indicated tests and studies should be performed. After examining the Veteran, evaluating the current nature and severity of her service-connected degenerative facet and disc disease of the lumbar spine, reviewing the Veteran’s full history by conducting a complete review of the claims file (including all available lay statements, private and VA medical treatment records, and examination reports), the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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 or repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected lumbar spine disability and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups or with repeated use over time, to include 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). If possible, the examiner must provide an opinion as to the Veteran’s limitation of function during flares or repetitive use over time raised in the record, as identified in the Veteran’s March 2019, November 2017, and April 2014 VA examinations. The examiner should identify and describe in detail all orthopedic and neurological manifestations of the Veteran’s service-connected degenerative facet and disc disease of the lumbar spine. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached. In this regard, the Board emphasizes that the Veteran is competent to report her symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of her disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Send the Veteran proper VCAA notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 informing the Veteran of what is needed to substantiate a claim for TDIU. Send the Veteran VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request the Veteran provide employment and education history. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.