Citation Nr: 21027257 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-27 567A DATE: May 5, 2021 REMANDED Entitlement to an initial disability rating for thoracolumbar muscle strain in excess of 10 percent prior to January 16, 2014; a compensable rating from January 16, 2014 to February 29, 2016; a disability rating in excess of 10 percent from March 1, 2016 to January 21, 2020; and a disability rating in excess of 20 percent on and after January 22, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 16, 2014 is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from October 1991 to May 22, 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision. In an August 2019 decision, the Board remanded the above issue for additional development. The case has since been returned to the Board for appellate review. The record shows that a July 2013 rating decision granted entitlement to service connection for thoracolumbar muscle strain and assigned an initial evaluation of 10 percent effective from May 23, 2013. The Veteran was notified of that decision and her appellate rights in a July 2013 letter. The Veteran later filed an increased rating claim for her disability on January 16, 2014. However, within one year of the July 2013 rating decision, the agency of original jurisdiction (AOJ) received new and material evidence in the form of a May 2014 VA examination as the examination included new findings regarding the severity of the Veteran's lumbar spine disability. See 38 C.F.R. § 3.156(b). The June 2014 rating decision decreased the disability rating for the Veteran's lumbar spine disability to a noncompensable rating effective from January 16, 2014; and the Veteran filed a timely notice of disagreement in July 2014 with the assigned percentage for her disability. As noted in the August 2019 Board decision, the Veteran was in receipt of a schedular 100 percent disability rating the time of the reduction, and there was no change in compensation paid. As such, the Board phrased the issue as an increased rating claim rather than an issue regarding the propriety of the reduction. Based on the foregoing, the Board also finds it appropriate to construe the claim as one for entitlement to an initial increased rating, and it is listed as such above. During the pendency of the appeal, a June 2016 rating decision awarded a 10 percent rating for the Veteran's lumbar spine disability effective from March 1, 2016. A subsequent August 2020 Decision Review Officer (DRO) decision increased the disability rating to 20 percent effective from January 22, 2020. As the assigned evaluations are less than the maximum available rating, the issue has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran requested a Travel Board hearing in her August 2015 VA Form 9. However, an August 2017 Report of General Information reflects that the Veteran later withdrew this hearing request; and she has not submitted any subsequent hearing requests. Consequently, there are no outstanding Board hearing requests. The record shows that during the appeal period of the Veteran's increased rating claim for her lumbar spine disability, the Veteran reported that she had been unemployed since retiring from the Army in 2013, and she indicated that symptoms of her service-connected major depressive disorder and posttraumatic stress disorder (PTSD) prevented her from rejoining the workforce. See May 2014 VA examination. The Veteran's representative also asserted in a July 2019 Informal Hearing Presentation that her lumbar spine disability impacted her employability. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is whether a TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board has assumed jurisdiction over the issue. The Board notes that during the appeal period for the Veteran's initial increased rating claim, the Veteran was awarded a 100 percent schedular rating for her service-connected major depressive disorder and PTSD effective from January 16, 2014. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, 22 Vet. App. at 293-94. Under Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. However, the Veteran was already awarded SMC pursuant to 38 U.S.C. § 1114(s) effective from January 16, 2014. See August 2020 DRO Decision. As such, the issue of entitlement to a TDIU during this period is moot and only the portion of the appeal period prior to January 16, 2014 is currently on appeal. 1. Entitlement to an initial disability rating for thoracolumbar muscle strain in excess of 10 percent prior to January 16, 2014; a compensable rating from January 16, 2014 to February 29, 2016; a disability rating in excess of 10 percent from March 1, 2016 to January 21, 2020; and a disability rating in excess of 20 percent on and after January 22, 2020 is remanded. 2. Entitlement to a TDIU prior to January 16, 2014 is remanded. In the August 2019 Board remand, the Board directed the AOJ to obtain a VA examination to evaluate the Veteran's lumbar spine disability. The Board instructed the examiner to conduct range of motion testing in passive and active motion, and in weight-bearing and nonweight-bearing conditions. The Board additionally stated that the examiner needed to document at what point during the Veteran's range of motion that she experienced any limitation of motion specifically attributable to pain. In response to the Board's remand, the Veteran was provided with a VA examination in January 2020. The examiner noted that the Veteran had pain in all planes of motion that caused functional loss. However, the January 2020 VA examiner did not note the point during range of motion that the Veteran experienced limitation of motion that was specifically attributable to pain. As such, an additional remand is required to ensure substantial compliance with the August 2019 Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the outcome of the increased rating claim remanded herein could impact the Veteran's claim for entitlement to a TDIU prior to January 16, 2014. As such, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Adjudication of this claim must therefore be deferred pending resolution of the increased rating claim discussed above. The matters are REMANDED for the following action: 1. The AOJ should obtain all VA treatment records for the Veteran dated from November 2019 to the present. 2. Schedule the Veteran for a VA examination to assess the current severity of her service-connected thoracolumbar muscle strain. The claims file must be made available to the examiner. All necessary tests are to be conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. (a) The examiner should determine the range of motion of the Veteran's thoracolumbar spine. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion she experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. (b) If the Veteran endorses flare-ups of symptoms, the examiner must comment on the functional limitations of the back during such flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is still asked to estimate further functional limitations based on the Veteran's subjective complaints and history. The examiner should also estimate any additional functional impairment after repeated use over time- based on the evidence of record and the Veteran's lay descriptions. The examiner should assess additional functional impairment on flare-up and after repeated use over a period of time in terms of the degree of additional range-of-motion loss, if possible. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. (c) The examiner should provide findings responsive to the criteria for rating intervertebral disc syndrome (IVDS). (d) The examiner must also indicate whether the Veteran has any neurological disability as a result of her lumbar spine disability. If so, the examiner should indicate the nerve or nerves affected, whether the neurological symptoms are better described as paralysis, neuritis, or neuralgia, and describe the severity of the neurological symptoms. (e) The examiner should assess the impact of the Veteran's service connected back disability on her activities of daily living, including her occupational functioning. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to January 16, 2014. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.