Citation Nr: 21026586 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-27 005 DATE: May 3, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent prior to June 11, 2015; in excess of 10 percent from June 11, 2015 to July 26, 2019, and; in excess of 20 percent thereafter, for degenerative disc and joint disease of the lumbosacral spine (back disability) is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to June 11, 2015, and in excess of 20 percent thereafter, for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to June 11, 2015, and in excess of 20 percent thereafter, for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 28, 2016, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to January 1970. The claims were most recently before the Board in October 2018. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial disability rating in excess of 20 percent prior to June 11, 2015; in excess of 10 percent from June 11, 2015 to July 26, 2019, and; in excess of 20 percent thereafter, for the back disability is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent prior to June 11, 2015, and in excess of 20 percent thereafter, for peripheral neuropathy of the left lower extremity is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent prior to June 11, 2015, and in excess of 20 percent thereafter, for peripheral neuropathy of the right lower extremity is remanded. The claims must be remanded because the previous examinations are inadequate. The June 2015 VA examiner provided initial range of motion (ROM) test results, but did not provide any ROM estimates of when the Veteran experiences flare-ups after stating the results are consistent with the Veteran's statements regarding flare-symptoms. The examiner further stated that the Veteran cannot bend or stoop during flare-ups. The July 2019 VA examination does not include the related findings either. On remand a new examination is warranted with a retrospective opinion that provides estimated ROM measurements during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As an evaluation of the Veteran's back disability may provide additional findings on the extent of the severity of his peripheral neuropathy of the bilateral lower extremities, these additional issues are intertwined and must also be remanded. 4. Entitlement to TDIU prior to October 28, 2016, to include on an extraschedular basis, is remanded. The TDIU claim is inextricably intertwined with the back disability rating claim and adjudication of TDIU will be deferred until the back rating issue prior to June 11, 2015, is decided. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician an appropriate clinician to determine the current severity of his service-connected back and lower extremity neurological disabilities. The examiner is also asked to specifically provide a retrospective opinion pertaining to the Veteran's ROM during flareups from the June 2015 VA examination. The examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to 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) and note what, if any, additional evidence would permit such an opinion to be made. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement TDIU. 3. Confirm that the VA medical opinions provided comports with this remand, specifically a ROM estimate in degrees during flare-ups or an explanation that complies with the directive number 2 above. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.