Citation Nr: 21025569 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-52 199 DATE: April 28, 2021 REMANDED Entitlement to a rating in excess of 10 percent for the service-connected chronic lumbar strain with degenerative arthritis is remanded. Entitlement to an initial rating in excess of 20 percent for the service-connected right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1973 to January 1981 and August 1995 to May 2008. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded this appeal for further evidentiary development. Following a January 2020 VA examination, the RO issued a rating decision in June 2020. In that decision, the RO granted service connection for right lower extremity radiculopathy, associated with the service-connected chronic lumbar strain with degenerative arthritis, and awarded a 20 percent rating, effective March 7, 2017. As the radiculopathy of the right lower extremity is a manifestation of the Veteran’s service-connected lumbar spine disability, the rating assigned over the appeal period is part of his appeal for an increased rating for his lumbar spine disability. A claim for a TDIU has been found to be raised in the context of the Veteran’s claim for an increased rating for the lumbar spine disability on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) & June 2017 Notice of Disagreement (NOD) and October 2017 VA Form 9. Entitlement to a rating in excess of 10 percent for the service-connected chronic lumbar strain with degenerative arthritis The November 2018 Board decision remanded the Veteran’s claim for an increased rating to obtain outstanding private and VA treatment records and to accord the Veteran a new VA examination to assess the current severity of his service-connected lumbar spine disability. The Veteran underwent a new VA examination in January 2020, at which time the examiner noted in the evaluation report the range of motion of the Veteran’s lumbar spine, and indicated that passive range of motion was not performed because it was not feasible to measure such in a safe and reasonable manner. Regarding non-weight bearing, the examiner indicated that this assessment was not applicable. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner explained that pain was shown in flexion and left lateral rotation and that such caused functional loss but failed to note at which point the Veteran experienced this pain during range of motion testing, to include whether or not the pain amounts to unfavorable ankylosis. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The examiner recorded the Veteran’s reports that his condition makes it very difficult for him to get out of the car, do household chores, or do any bending. However, the examiner did not appear to take the Veteran’s statements into account in addressing his functional loss and functional impairment. Rather, the examiner simply noted that the Veteran would have difficulty bending over to pick up objects due to loss of forward flexion range of motion, possibly suggesting a higher level of impairment than indicated on the examination report. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Because the January 2020 examination report does not appear to have solicited the full picture of the Veteran’s symptoms and failed to include information regarding functional loss attributable to pain in range of motion testing, the Board finds the examination to be inadequate for rating purposes. As such, there has not been substantial compliance with the directives of the November 2018 Board remand. Stegall, 11 Vet. App. at 271. Accordingly, a remand is necessary for corrective action, to include obtaining a new examination that adequately addresses the current severity of the Veteran’s lumbar spine disability. Entitlement to an initial rating in excess of 20 percent for the service-connected right lower extremity radiculopathy As the Veteran’s lumbar spine and right lower extremity radiculopathy disabilities are associated with each other, these service-connected disabilities are inextricably intertwined and must be considered together. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the Board finds that the examination conducted on remand should also include an assessment of the severity of the service-connected radiculopathy of his right lower extremity as such is a manifestation of his lumbar spine disability. Entitlement to a TDIU As noted above, the claim for entitlement to TDIU comes before the Board because it has been raised by the record as part of the Veteran’s claim for an increased rating for his service-connected lumbar spine disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Veteran should be provided with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, and this claim should thereafter be developed accordingly. Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, as well as notice of the evidence and information necessary to substantiate a claim for a TDIU. 2. Also, schedule the Veteran for an examination to determine the severity of his service-connected chronic lumbar strain with degenerative arthritis and service-connected right lower extremity radiculopathy. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with these disabilities must be reported in detail.  a. The examiner should test the range of motion and pain in the Veteran’s lumbar spine in active and passive motion and in weight-bearing and nonweight-bearing—to the extent possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he/she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should specifically identify the points, if any, at which pain begins. b. Additionally, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically.  c. Should the examiner state that he/she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flareup, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding the Veteran’s flareups by alternative means.  d. The examiner must also assess all neurological abnormalities due to the Veteran’s service- chronic lumbar strain with degenerative arthritis—including his service-connected right lower extremity radiculopathy.  e. The examiner should also address how the Veteran’s lumbar spine disability and right lower extremity radiculopathy impact his activities of daily living, including his ability to obtain and maintain substantially gainful employment. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.