Citation Nr: 21027740 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 07-20 814 DATE: May 6, 2021 REMANDED The claim of entitlement to an initial disability rating greater than 10 percent for low back strain with subjective complaints of numbness and tingling of the lower extremities prior to April 7, 2008 is remanded. The claim of entitlement to an effective date earlier than April 7, 2008 for the assignment of a total disability rating based on individual unemployability based on service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to August 1978 and from December 2003 to June 2004. Additionally, he had long-term service in the United States Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Oakland, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA). Specifically, the June 2007 rating decision granted service connection for a low back strain, rated 10 percent from September 13, 2005. Subsequently, by rating decision dated in March 2009, the RO increased the Veteran's disability rating for low back strain from 10 to 40 percent disabling effective April 7, 2008. With regard to the TDIU claim, the Veteran filed a formal claim for a TDIU in June 2010, and the RO granted that benefit, effective November 30, 2009, in a May 2012 rating decision. However, the Veteran has been alleging he is unemployable due to service-connected disabilities prior to November 2009, as part of his claim for an increased rating. A claim for increased evaluation includes a claim for TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to a TDIU prior to November 30, 2009 is therefore considered to be on appeal as part of the increased rating claim. The Veteran testified at a May 2015 hearing held before the undersigned at the RO; a transcript of the hearing is associated with the claims file. The above issues were previously before the Board in both July 2015 and September 2018 at which times they were remanded for additional development. In January 2020, the Board, in part, denied an initial disability rating greater than 10 percent for the Veteran's low back disability prior to April 7, 2008 and assigned an earlier effective date of April 7, 2008 for the Veteran's award of a TDIU. The Veteran appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Veteran and VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board's January 2020 decision pertaining to the issues of entitlement to an initial disability rating greater than 10 percent for the Veteran's low back disability prior to April 7, 2008 and entitlement to an effective date earlier than April 7, 2008 for the Veteran's award of a TDIU. Notably, the Board's January 2020 decision regarding a disability rating greater than 40 percent for the Veteran's low back disability beginning April 7, 2008 was not disturbed. 1. The claim of entitlement to an initial disability rating greater than 10 percent for low back strain with subjective complaints of numbness and tingling of the lower extremities prior to April 7, 2008 is remanded. Although the Board regrets the additional delay, the December 2020 Joint Motion indicates that a remand is required in this case due to perceived deficiencies in the record. Specifically, the Joint Motion took issue with a May 2007 VA spine examination used to rate the Veteran's low back disability prior to April 7, 2008. During the May 2007 VA examination the Veteran reported experiencing low back flare-ups in cold weather, and he rated his level of pain during a flare-up as 9 out of 10 on the pain scale. He stated that he also experienced worsening of the pain with prolonged sitting of greater than one-half hour or with heavy lifting. He also explained that he experienced flare-ups every one to two weeks, and he took Motrin after 30 to 60 minutes. Unfortunately, the May 2007 VA examiner did not describe the Veteran's limitations during a flare-up and/or immediately after repeated use over time in terms of the degrees of additional range of motion loss with respect to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The only statement from the examiner regarding functional loss was reflected as "[f]unctional limitations on examination as described above." Given the above, the Court directed the Board to obtain a retrospective medical opinion with regard to the question of functional loss during the Veteran's reported flare-ups. Such opinion should be obtained on remand. 2. The claim of entitlement to an effective date earlier than April 7, 2008 for the assignment of a TDIU is remanded. A TDIU may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran has combined disability ratings of 40 percent beginning September 13, 2005, 80 percent beginning December 12, 2007, and 90 percent beginning April 7, 2008. Therefore, the Veteran currently meets the minimum schedular criteria for a TDIU beginning December 12, 2007. 38 C.F.R. § 4.16(a). By way of history, on September 13, 2005, the Veteran submitted a claim for service connection for a low back disorder. Subsequently, the granted service connection for low back strain assigning an initial 10 percent disability rating effective September 13, 2005 and increasing this rating to 40 percent effective April 7, 2008. The Veteran perfected this appeal with regard to the disability ratings assigned. In June 2010, the Veteran raised a formal claim for TDIU, indicating that all of his service-connected disabilities precluded him from employment. The Veteran's low back strain evaluations were properly before the Board at that time, based on his appeal of the assigned ratings. By December 2012 rating decision, a TDIU was granted effective November 30, 2009. In July 2015, the Board took jurisdiction of the claim regarding an effective date earlier than November 30, 209 pursuant to Rice as part and parcel to the Veteran's increased rating claim which had been pending since September 13, 2005. A review of the record shows that the Veteran last worked in construction in late 2007. Significantly, during the May 2007 VA examination the Veteran reported that he worked in construction and had missed no work in the past year due to back pain and had no incapacitating episodes. However, during the February 2009 VA examination the examiner noted that the Veteran was very symptomatic. He could not bend, stoop, crouch, crawl, climb, or balance. He also could not lift. He had not been working since 2007 because of his inability to keep up with his job requirements. The January 2012 VA examiner also noted that the Veteran's lumbar spine disability impacted the Veteran's ability to work in that it limited his ability to lift, walk for more than half a mild, and stand/sit for prolonged periods of time. He last worked in construction in 2007 and reported that he was having difficulty performing occupational tasks while working. Most recently, the March 2018 VA examiner opined that the Veteran's lumbar spine disability impacted his ability to work in that it limited him from lifting items with his previous job as a carpenter as well as climbing walls. Initially, it appears that the Veteran now meets the schedular criteria for a TDIU beginning December 12, 2007 based upon awards made in a December 2020 rating decision. However, as above, the Board has remanded the increased rating claim regarding the low back prior to April 7, 20008 which has been pending since September 2005. As the disability rating assigned for the Veteran's low back disability prior to April 7, 2008 is relevant to whether a TDIU can be awarded on a schedular basis prior to April 7, 2008, the Court found that the TDIU issue is inextricably intertwined with future assignment of a rating for the low back prior to April 7, 2008 and must first be addressed by the AOJ. Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, in the December 2020 Joint Motion, the Court suggested that an extraschedular TDIU may be possible prior to the date the Veteran meets the schedular criteria for a TDIU. As such, the RO should consider referring the claim to the Director of Compensation Service for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The matters are REMANDED for the following action: 1. Return the claims file to the May 2007 VA spine examiner for an addendum opinion. If the examiner who drafted the May 2007 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the reviewing examiner is requested to provide a retrospective medical opinion with regard to the question of functional loss during the Veteran's low back flare-ups prior to April 7, 2008. Specifically, the examiner should note the Veteran's complaints of flare-ups, during the May 2007 VA spine examination (flare-ups in cold weather, rated as 9 out of 10 on the pain scale, worsened with prolonged sitting of greater than one-half hour or with heavy lifting, occurring every one to two weeks, and lasting 30 to 60 minutes), and express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The examiner should opine as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. The VA examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. VA's Clinician's Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans. An opinion stating there is "no conceptual or empirical basis for making such a determination without directly observing function under these circumstances," without more, is insufficient. 2. Consider referring this case to the Under Secretary for Benefits of the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.