Citation Nr: 21025819 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-50 786 DATE: April 29, 2021 REMANDED An evaluation in excess of 10 percent prior to January 14, 2020; in excess of 20 percent from January 14, 2020 to December 21, 2020; and in excess of 40 percent from December 22, 2020, forward, for lumbosacral degenerative arthritis, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision that denied entitlement to a disability rating in excess of 10 percent for lumbosacral degenerative arthritis. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In May 2020, the Board remanded the Veteran’s claim for additional development. Subsequent to the Board’s May 2020 remand, the RO increased the disability rating assigned to the Veteran’s lumbar spine disability to 20 percent, effective January 14, 2020, and to 40 percent, effective December 22, 2020. In February 2021, the Veteran submitted a claim for a TDIU based, in part, upon his service-connected lumbosacral degenerative arthritis. He reported that he last worked full time in May 2014. While the RO denied entitlement to a TDIU in an April 2021 Appeals Modernization Act (AMA) rating decision, the Board finds that the Veteran’s TDIU claim is part and parcel of his increased rating claim for his lumbar spine disability previously filed under the Legacy system. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the issue of entitlement to TDIU takes its place as part of an increased rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability). REASONS FOR REMAND An evaluation in excess of 10 percent prior to January 14, 2020; in excess of 20 percent from January 14, 2020 to December 21, 2020; and in excess of 40 percent from December 22, 2020, forward, for lumbosacral degenerative arthritis, is remanded. Entitlement to a TDIU due to service-connected disabilities is remanded. Following completion of the development requested in the Board’s May 2020 remand, the RO issued a statement of the case (SSOC) in October 2020 addressing the issue of entitlement to an evaluation in excess of 10 percent for lumbosacral degenerative arthritis prior to January 14, 2020, and to an evaluation in excess of 20 percent from January 14, 2020, forward, for lumbosacral degenerative arthritis. Subsequent to the issuance of the October 2020 SSOC, additional relevant evidence has been added to the file, including VA outpatient treatment records, Social Security Administration (SSA) records, and a VA Back examination dated in January 2021. However, the RO has not provided the Veteran with an additional SSOC. See 38 C.F.R. § 19.31 (2018). This should be accomplished on remand. Further, a retrospective medical opinion is necessary to capture the severity of the Veteran’s limitation of motion of the back prior to July 2020. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The Veteran denied experiencing flare-ups of his lumbar spine disability on VA examinations in July 2020 and January 2021. However, during his VA examination in April 2015 he stated that he had flare-ups approximately three times a week which lasted the entire day. To alleviate flare-ups, he stated that he sat in his “easy chair” and used ice, Ibuprofen, and a TENS unit. In terms of function, he stated that flare-ups immobilized him. With flare-ups, the Veteran reported that he was “grabbing the wall,” could not stand long, and could not sit straight up. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Obtain a retrospective opinion from a VA examiner for the Veteran’s service-connected back condition. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the retrospective opinion. The examiner should provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports, clinical records, the April 2015 VA back examination report, and other evidence, for the time period prior to July 15, 2020. The examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). • The examiner should specifically consider the April 2015 VA examination report wherein the Veteran stated that he had flare-ups approximately three times a week which lasted the entire day. To alleviate flare-ups, he stated that he sat in his “easy chair” and used ice, Ibuprofen, and a TENS unit. In terms of function, he stated that flare-ups immobilized him. With flare-ups, the Veteran reported that he was “grabbing the wall,” could not stand long, and could not sit straight up. If there is any medical reason to accept or reject the Veteran’s description of his flare-ups, this should be noted. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Finally, readjudicate the Veteran's claims. If any of the benefits sought remain denied, issue a supplemental statement of the case (SSOC) and return the case to the Board. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.