Citation Nr: 21025975 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-18 427 DATE: April 29, 2021 ORDER The claim for entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. REMANDED A disability rating in excess of 10 percent for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran filed a TDIU claim on May 9, 2012. 2. The Veteran has been in receipt of a 100 percent disability rating and Special Monthly Compensation (SMC) for the entire period on appeal. CONCLUSION OF LAW The appeal as to the issue of entitlement to a TDIU is dismissed as moot. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1978 to October 1998. These issues come to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. These issues were previously before the Board in December 2015 and March 2018, and were remanded for further development. The Board notes its previous March 2018 remand addressed the issues of entitlement to service connection for lung cancer and service connection for an acquired psychiatric disorder; however, in a February 2021 rating decision, the RO granted entitlement to service connection for lung cancer and service connection for a depressive disorder NOS. As this is considered a full grant of the benefits sought on appeal for this claim, these issues are no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Regarding the claim for an earlier effective date for a higher rating for the Veteran’s low back disability, in a May 2020 rating decision, the RO assigned a 10 percent rating for lumbar spine strain from November 3, 2005, forward. The RO’s grant of an effective date of November 3, 2005, prior to one year of the date of the claim, for a 10 percent rating for a lumbar spine strain is considered a full grant of the benefits sought with respect to the earlier effective date claim and is therefore no longer on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2021, the Veteran’s representative attorney submitted a letter stating that they were no longer representing the Veteran in her claim for benefits and had notified the Veteran. In an April 2021 letter, the attorney sent VA a Motion to Withdraw Representation under 38 C.F.R. § 20.608 due to factors which make continuation of representation impossible, impractical, or unethical. Upon consideration, the representative’s motion to withdraw representation is granted. The claim for entitlement to a TDIU is dismissed as moot. A TDIU is considered a lesser benefit than a 100 percent rating, and the award of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award of Special Monthly Compensation at the housebound rate under 38 U.S.C. § 1114(s), for TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater. Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran has already been in receipt of a 100 percent disability rating, SMC-S, and SMC-K for the entire appeal period. See February 2021 Codesheet. Thus, the claim for TDIU is moot and is therefore dismissed. REASONS FOR REMAND A disability rating in excess of 10 percent for a low back disability is remanded. The Veteran was afforded a VA examination in January 2020. A review of the record shows the Veteran’s January 2020 VA back examination does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Correia mandates that certain examinations include the testing described in 38 C.F.R. § 4.59 (2018) or an explanation as to why such testing is not warranted or not possible. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. The Board observes the January 2020 VA back examination does not include all of the following: active range of motion testing results, passive range of motion testing results, weightbearing range of motion testing results, and nonweightbearing range of motion testing results. Furthermore, while the examiner notes the Veteran denied flare-ups and the Board acknowledges the record documents that the Veteran’s back pain is tolerable and “well controlled” with medication, the record elsewhere shows the Veteran reporting flare-ups or suggests the Veteran experiences flare-ups. For example, the Veteran reported flare-ups during her April 2013 VA back examination. The January 2020 VA examination report also notes the Veteran would experience anticipated discomfort with prolonged sitting, and she deals with significant pain control issues on a daily basis. As a result, a new back examination is warranted that is consistent with the Veteran’s medical record or that provides an explanation of the inconsistency within the record. Finally, a retrospective medical opinion was requested by the Board in its March 2018 remand to capture the severity of the Veteran’s low back limitation of motion since March 2011 (one year prior to the claim for increased rating). 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). In June 2020, a VA examiner states that a retrospective opinion is not possible as it would be mere speculation. They state that the January 2020 VA back examination reflects the current severity of the Veteran’s low back condition. The Board finds the June 2020 opinion to be inadequate because the examiner did not provide rationale as to why a retrospective opinion is not possible and would be mere speculation. For example, the examiner did not explain what medical evidence would have been sufficient to render a non-speculative opinion. Furthermore, the examiner found the January 2020 VA back examination reflects the current severity of the Veteran’s low back condition; however, the Board has found that examination to be inadequate under Correia and possibly Sharp.   The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to her claim. 2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of her service-connected low back condition and to render a retrospective medical opinion regarding the severity of the disability since March 2011. 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 examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. The examiner must test the range of motion in active motion, passive motion, weight-bearing and nonweight-bearing settings. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e., active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. Considering this information, the examiner should describe whether pain significantly limits functional ability during flare-ups and after repetitive use. If the examination is not performed during a flare-up or after repetitive use, the examiner must provide an estimate of additional loss of range of motion during a flare-up and with repeated use over time. If the examiner is unable to provide an estimate of additional loss of motion, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. If the Veteran denies flare-ups, such as flare-ups of pain, the examiner should provide an explanation as flare-ups of low back symptoms are reported throughout the medical record. Finally, the examiner should provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the time period since March 2011 (one year prior to the claim for increased rating). The examiner is asked to provide an opinion estimating any additional degrees of limited motion (i.e., forward flexion) 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 must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denton, Buck 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.