Citation Nr: 21026093 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-33 713 DATE: April 29, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to May 29, 2015, and a rating in excess of 20 percent thereafter, for degenerative arthritis of the spine is remanded. Entitlement to an initial compensable rating for a bilateral hearing loss disability 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 1982 to October 1986. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, by way of a May 2017 rating decision, the Veteran’s degenerative arthritis of the spine was increased to 20 percent disabling effective May 29, 2015. In February 2021, the Veteran had a virtual hearing before the undersigned Veterans Law Judge. 1. Entitlement to an initial rating in excess of 10 percent prior to May 29, 2015, and a rating in excess of 20 percent thereafter, for degenerative arthritis of the spine is remanded. During a February 2021 virtual Board Hearing, the Veteran asserted that his back disability had worsened since he was last examined by VA in May 2015. He stated that his back hurts all the time and described the pain as a 9 out of 10 most days of the week. The Board notes that where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). As such, the Board finds that the Veteran should be afforded a new VA examination to ascertain the current severity and manifestations of his service-connected back disability. 2. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. During his February 2021 Board hearing, the Veteran reported that his bilateral hearing loss disability had worsened since his last VA examination in April 2019. As such, because the Veteran asserted that his bilateral hearing loss disability has increased in severity since he was last examined by VA in April 2019, the Board finds that he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected bilateral hearing loss disability. 3. Entitlement to a TDIU During his February 2021 Board hearing, the Veteran reported that he has only been able to work part-time (20 hours per week) instead of full time, since about 2015 due to his service-connected back disability. Further, during a May 2015 back examination, the examiner reported that the Veteran’s back disability impacts his ability to perform occupational tasks noting that he can only perform light physical and sedentary tasks due to his diagnosis. This raises the issue of whether the Veteran is entitled to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In accordance with Rice, entitlement to a TDIU is considered part and parcel to the increased rating claim already on appeal. Thus, the Board has jurisdiction to consider this issue. Obtain a VA Form 21-8940 from the Veteran to determine whether or not the Veteran’s part-time work constitutes full employment. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file, including all outpatient treatment records from the West LA VAMC from January 2014 forward. 2. Ask the Veteran to complete a VA Form 21-4142 so he can provide the information necessary to identify and locate private treatment records related to his back, including for Dr. Susan Fa. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Obtain a VA Form 21-8940 indicating educational and employment information from the Veteran, including the last time he was employed, the number of hours worked and his wages. Inform the Veteran that if employment information is not received, his claim for entitlement to a TDIU may be considered abandoned. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative arthritis of the spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s back disability under the rating criteria. The examiner should elicit an educational and work history from the Veteran and describe the functional impairment caused by his back disability. (a) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b) 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an audiological examination by an appropriate clinician to determine the current severity of his bilateral hearing loss disability. The claims file must be reviewed by the examiner. All necessary tests should be performed, and all clinical findings reported in detail. If the examiner is unable to secure valid test results, they should explicitly state why (e.g., cognitive impairment, lack of cooperation by the Veteran), and the examiner should give a rationale in support of this determination. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, Associate 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.