Citation Nr: 21024848 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 08-30 119A DATE: April 26, 2021 REMANDED The issue of an increased rating of more than 10 percent for lumbosacral strain with degenerative disc disease (DDD) prior to December 3, 2008, to include a separate compensable rating for sleep difficulties is remanded. The issue of entitlement to an effective date prior to October 1, 2008 for a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1963 to February 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously remanded by the Board in August 2013 and September 2016. In November 2019, the Board denied an increased rating of more than 10 percent for lumbar strain with DDD prior to December 3, 2008, and remanded the issue of entitlement to an effective date prior to August 28, 2009 for TDIU for further development. The Veteran appealed the denial of an increased rating for lumbosacral strain with DDD prior to December 3, 2008 to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a joint motion for partial remand, vacating the denial of entitlement to an increased rating for lumbosacral strain with DDD prior to December 3, 2008, remanding the issue back to the Board. As it pertains to the TDIU issue, the RO in an October 2012 rating decision, indicated that the Veteran had been assigned a TDIU beginning October 28,2010. The Board found, however, that the TDIU issue was part and parcel of a claim for increased evaluation for a lumbar spine disability, and therefore the Board had taken jurisdiction over the TDIU for the period prior to October 28, 2010 in its August 2013 decision and remanded the claim for further development pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In September 2016, the Board again remanded the issue for further development as it was inextricably intertwined with the Veteran’s claim for increased rating for lumbosacral strain. Following the Board’s September 2016 remand, the RO granted entitlement to a TDIU effective August 28, 2009, the date of the Veteran first met the schedular requirement for a TDIU. In November 2019, the Board remanded the issue of entitlement to an effective date prior to August 28, 2009 as the appeal period was intertwined with the increased rating claim on appeal which began prior to August 28, 2009. In that decision, the Board determined that the Veteran did not meet the schedular requirement for a TDIU prior to August 28, 2009 and referral to VA’s Director of Compensation Service was warranted. In the May 2020 rating decision, the RO granted a TDIU on an extraschedular basis effective October 1, 2008. The RO indicated that it treated the grant of a TDIU on an extraschedular basis effective October 1, 2008 as a full grant of benefits pertaining to a TDIU. However, as noted above, a TDIU is part-and-parcel of the increased rating claim on appeal. Therefore, the earliest potential effective date for TDIU is August 1, 2004, the includes date the Veteran filed a claim for an increased rating for his lumbar spine disability and the one year look back provision. As such, the Board finds that the claim for entitlement to a TDIU prior to October 1, 2008 remains in appellate status. The Court in its August 2020 decision indicated that the Veteran’s sleep difficulties should be adequately reviewed to determine whether these symptoms should be compensated under a separate rating or any other form of compensation. The Board finds a retrospective opinion is required to determine to what extent the Veteran suffered from sleep difficulties associated with his lumbar spine disability. Currently, the Board is unclear as to the nature and extent of these symptoms and whether they should be afforded a separate rating or entitled to compensation under another applicable diagnostic code. Additionally, the Veteran’s claim for TDIU prior to October 1, 2008, is inextricably intertwined with the increased rating claim on appeal and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following actions: 1. Obtain a retrospective medical opinion by an appropriate clinician to determine the severity of his service-connected lumbosacral spine disability prior to December 3, 2008. 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 to include the severity of any sleep difficulties or diagnosis of a sleep disorder that may be related to the Veteran’s service-connected lumbosacral strain prior to December 3, 2008. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment (expressed in terms of additional range of motion lost) based on the evidence of record and the Veteran’s lay descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. This is especially necessary for the retrospective opinion. To be clear, the Veteran should be asked to give a retrospective lay description of such characteristics and the examiner should consider his response in formulating the opinion. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. A complete rationale must be provided for all opinions expressed. Although the examiner must review the record, his/her attention is called to the following: *At the September 2005 VA examination, it was noted that the Veteran had flare-ups lasting 2- or 3-days weekly that were very severe and he could not do anything until the pain was reduced. His forward flexion was limited to 80 degrees with pain beginning at 50 degrees. *In September 2008 private treatment records note the Veteran reported he wakes up during the night and sleeps about an hour and then wakes up due to lumbar spine pain. *In October 2008 private treatment records note the Veteran had pain associated with neurogenic claudication and had severe defect in the lumbar spine with severe spinal canal stenosis. The Veteran was recommended to have microsurgical lumbar decompressive laminectomy, foraminotomy, facetectomy and intervertebral body fusion as well as pedicle and rod fixation. *At the March 2009 VA examination it was noted the Veteran had back pain that was worse at night. The examiner noted he did have additional limitation of motion during flare-ups in that his pain becomes so severe he is able to do very little. Forward flexion was limited to 25 degrees. The examiner noted the Veteran’s motion was very limited to begin with. 2. Following the review and any additional development deemed necessary, readjudicate the claims. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.