Citation Nr: 21024238 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-34 095 DATE: April 22, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a service-connected back disability is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2005 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board issued a decision denying the Veteran’s claim for an increased rating for his service-connected back disability and the Veteran appealed the November 2018 decision to the United States Court of Appeals for Veterans Claims (Court) In an October 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the Board’s November 2018 decision and remanding this matter for additional development. In April 2020 and December 2020, the Board remanded this matter for additional development, and it is now back before the Board. 1. Entitlement to a disability rating in excess of 10 percent for a service-connected back disability is remanded. 2. Entitlement to a TDIU is remanded. This matter was remanded in April 2020 and December 2020 to comply with the JMPR to obtain a medical opinion which addresses specific findings on a May 2016 VA examination and provides an opinion as to whether the Veteran has a diagnosis of radiculopathy associated with his service-connected low back disability. Additionally, the JPMR and subsequent Board remands required the RO to obtain a medical opinion which complies with the Court’s ruling in Correia v. McDonald, 28 Vet. App. 158 (2016), which requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran attended a VA examination in July 2020. The July 2020 VA examiner reported that the tests for passive range of motion required by the Correia ruling are “not feasible to do in a safe and reasonable manner” and that the testing for nonweight-bearing was “not applicable,” but did not explain any reasoning to support the conclusion that the tests were not appropriate or applicable. Where a test or opinion cannot be offered, bald statements that a test is not applicable are not sufficient. Instead, the examiner must provide a rationale why each test cannot be performed in the context of the Veteran, his or her disabilities, and the test requested. Cf. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, the July 2020 VA examination is inadequate for evaluation purposes. Thus, at present, the current medical evidence of record does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. The Board finds that the claim for entitlement to a TDIU is inextricably intertwined with the Veteran’s claim for entitlement a disability rating in excess of 10 percent for his service-connected back disability. Therefore, the Veteran’s claim for entitlement to a TDIU must also be remanded. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. 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). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.