Citation Nr: 21023969 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-10 732 DATE: April 21, 2021 REMANDED The issue of entitlement to a rating in excess of 40 percent for lumbar spinal stenosis for the period since November 14, 2014, is remanded. The issue of entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from October 1989 to February 2002. This matter comes before the Board of Veteran’s Appeals (Board) from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2019 when the Board denied the claim for increased rating for lumbar spinal stenosis and referred the issue of TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a June 2020 joint motion for partial remand (JMPR) by the parties. The issues were again before the Board in December 2020 when the claim for increased rating for lumbar spinal stenosis was remanded for a VA examination opinion in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017), and the claim for TDIU was remanded for further development. 1. For the period since November 14, 2014, entitlement to a rating in excess of 40 percent for lumbar spinal stenosis is remanded. To be adequate, a VA examination of the joints must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The February 2020 VA lumbar spine examination was inadequate because the examiner failed to perform passive range of motion testing and did not provide an explanation for that decision. Therefore, remand is necessary to obtain an adequate opinion. 2. The issue of entitlement to a total disability rating based on individual unemployability is remanded. A TDIU claim can be expressly raised or inferred, by the Veteran’s contentions and the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). If there is evidence of unemployability at the time of an increased rating claim challenging the initial disability rating assigned for the disability upon which the unemployability is based, entitlement to TDIU, including the effective date for that award, is part and parcel of the determination of the initial rating for that disability. Id. at 454-55. Here, the Veteran indicated that he was unable to work because of his back disability. See 4/9/2015 Statement in Support of Claim. Twice, the Board has remanded the claim for TDIU and, in keeping with the remand directives of the last remand, the Veteran was sent a letter with VA Forms 21-8940 and 21-4192 for completion. See December 8, 2020 Subsequent Development Letter. Neither of the forms have been completed and returned. The Veteran is advised that it is in his best interest to cooperate in obtaining the evidence necessary to adjudicate the claim. See Wood v. Derwinski, 1 Vet. App. 190,193 (1991); See, e.g., 38 C.F.R. § 3.159 (c). Because the Board does not have sufficient information to decide the claim, the issue of entitlement to a TDIU is remanded for further development. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spinal stenosis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). 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, throughout the entirety of the appeal period – that is, since November 2014. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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 the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Provide the Veteran with another VA Form 21-8940. Document all attempts to obtain employment information and associate with the claims file. Following a review of the form and any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, 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.