Citation Nr: 21027084 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-28 526 DATE: May 4, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for service-connected degenerative arthritis of the lumbar spine prior to January 31, 2013 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability prior to September 2, 2020 is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army Reserves and Army National Guard with periods of active duty from April 1991 to September 1991and from October 2008 to November 2009 This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2020 and June 2020, at which time the issues currently on appeal were remanded for further development. This case has been returned to the Board for further appellate action. A January 2021 rating decision granted entitlement to a TDIU from September 2, 2020. Accordingly, the matter on appeal has been rephrased as entitlement to a TDIU prior to September 2, 2020. Initial Rating Degenerative Arthritis In January 2020 and June 2020, the Board remanded the case for a retrospective opinion due to inadequacies in the April 2012 VA back examination, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Collectively, the VA examiner was instructed, to estimate the decrease in range of motion (ROM) on active and passive motion, and in weight-bearing and non-weight-bearing; estimate the decrease in ROM due to painful motion; and, identify any functional loss and/or functional impairment of the Veteran's lumbar spine disability, from 2011 to 2013. In a September 2020 VA addendum opinion, a VA examiner noted that the 2011 to 2013 condition was seven years earlier. However, the VA examiner failed to assess the decreased ROM and/or limitations of the Veteran's lumbar spine disability from 2011 to 2013. Additionally, in February 2021, the VA examiner failed to provide an opinion and requested clarification of the remand instructions provided by the Agency of Original Jurisdiction (AOJ). The Board notes that the evidence of record does not show that the February 2021 VA examiner's request for clarification was fulfilled. Under the circumstances, the Board finds that the AOJ erred by not obtaining an adequate opinion that complied with the Board's remand. See Stegall v. West, 11 Vet. App. 269 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a remand is warranted to obtain an addendum opinion. 38 C.F.R. § 20.802. TDIU prior to September 2, 2020. The Board finds that the issue of entitlement to a TDIU prior to September 2, 2020 is inextricably intertwined with the increased rating claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Therefore, a determination on the claim for TDIU prior to September 2, 2020 must be deferred pending final disposition of the claim of entitlement to an initial disability rating in excess of 20 percent prior to January 31, 2013 for degenerative arthritis of the lumbar spine. The matters are REMANDED for the following action: 1. Obtain an addendum retrospective medical opinion for the period of 2011 to 2013 from a medical professional, with the appropriate expertise, who has not yet provided an opinion on this case. The claims file, to include a copy of this remand, must be reviewed and that review should be noted in the opinion. Based on a review of the file, the examiner should, if possible: (A) determine whether the Veteran's ROM results from the April 2012 VA examination would have been reduced if tested in both active and passive motion, and in weight-bearing and non-weight bearing; (B) estimate the point (in degrees) where painful motion would have begun and ended during the April 2012 VA examination; and (C) identify any functional loss and/or functional impairment, to include associated symptoms, of the Veteran's lumbar spine disability. If the requested opinion cannot be rendered without resorting to speculation, the examiner must 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 there is a deficiency in the record (i.e. additional facts are required). The rationale for all opinions or conclusions reached must be provided. 2. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case (SSOC) and allow appropriate time for a response. Then, return the case to the Board. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.