Citation Nr: 21024306 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-11 950 DATE: April 22, 2021 REMANDED Entitlement to a rating in excess of 20 percent for paraspinal lumbar spasms is remanded. Entitlement to a temporary total rating for convalescence for a low back disability pursuant to 38 C.F.R. § 4.30 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to June 1984 and from May 1988 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case has an extensive procedural history, which the Board will not reiterate here except to note that all claims were most recently remanded by the Board in March 2019. 1. Increased rating for paraspinal lumbar spasms. This claim was remanded in March 2019 because the Board found that the March 2018 VA examiner failed to comply with the January 2018 Board remand instructions. The claim was remanded for another VA examination. The subsequent examiner was directed to identify and distinguish all symptomatology due to the Veteran’s service-connected paraspinal lumbar spasms from that due to other nonservice-connected low back disability. If the examiner found this was not possible, the examiner was directed to indicate and provided an explantation for his or her conclusion. The examiner was also requested to provide range of motion testing for the Veteran’s active, passive, and pain with weight-bearing and without weight-bearing. In addition, the examiner was also directed to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it was not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner was directed to state the reason. The Veteran was afforded a VA examination in November 2019. The examiner did not include any language that distinguished the Veteran’s symptoms regarding his service-connected paraspinal lumbar spasms and other nonservice-connected low back disabilities. The examiner indicated that the Veteran only had a diagnosis for paraspinal lumbar spasms. However, the examiner then noted imaging from May 2012 where the Veteran had multiple issues with his lumbar spine, specifically L4-L5 and L5-S1. The examiner also indicated that passive range of motion testing could not be performed or was not medical appropriate. However, the examiner failed to state any reason for not testing passive range of motion, as requested in the March 2019 remand. As there was not substantial compliance with previous remand directives, another remand is required. The Board also notes that a March 2013 VA examiner referenced a June 2008 chiropractor note and that the chiropractor note is not in the record. The Veteran was seen at multiple VA medical centers. There is no indication that the VA requested the chiropractor records. Thus, the RO must take further steps to ensure all medical records are associated with the Veteran’s file. 2. 38 C.F.R. § 4.30 rating and TDIU Since the claims for a temporary total rating and for TDIU are intertwined with the Veteran’s VA examination for an increased rating for his paraspinal lumbar spasms, they must also be remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA treatment in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Contact the Veteran and request a properly completed VA Form 21-4142, Authorization and Consent to Release Information to VA, for all outstanding records of medical treatment from the Veteran, including but not limited to, chiropractor records from June 2008. All attempts to obtain such records must be documented and any such documentation must be associated with the Veteran's claims file 3. After obtaining any outstanding records, afford the Veteran an additional VA spine examination. Forward the claims file to a qualified medical professional, preferably other than the November 2019 examiner, to determine the current severity of his service-connected paraspinal lumbar spasm disability. The entire claims file, including all Board remands and examinations, must be reviewed. The examiner is asked to address the following, supported by a rationale: (a.) To the extent possible, the examiner should identify and distinguish all symptomatology due to the Veteran’s service-connected paraspinal lumbar spasms from those symptoms due to any other nonservice-connected low back disability. If this is not possible, the examiner should so indicate and provide an explanation for his or her conclusion. (b.) 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. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state the reason. (c.) Identify any periods regarding a requirement for convalescence due to the Veteran’s service-connected paraspinal lumbar spasms, following hospitalization and/or surgery. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.