Citation Nr: 21028578 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-17 252 DATE: May 11, 2021 REMANDED Entitlement to a noninitial disability rating in excess of 10 percent prior to April 1, 2009, and in excess of 20 percent thereafter, for the Veteran's service-connected lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1997 to August 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and May 2011 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a July 2018 decision, the Board, in pertinent part, denied the Veteran's appeal seeking a noninitial rating in excess of 10 percent prior to April 1, 2009, and in excess of 20 percent thereafter, for the Veteran's service-connected lumbar spine disability. The Veteran filed a timely appeal before the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Veteran and VA (the parties) agreed to a Joint Motion for Partial Remand (JMPR) vacating the Board's decision on the claim and remanding the matter back to the Board for readjudication consistent with the terms of the JMPR. The Court granted the JMPR in July 2019. In the JMPR, the parties agreed that the VA examinations of record at the time of the July 2018 Board decision, including the August 2008, February 2010, January 2011, and September 2016 VA examinations, were inadequate because they failed to test for pain on both active and passive motion, and in the weightbearing and non-weightbearing position, as dictated by the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016). The parties also agreed that the Board erred in failing to raise an implied claim of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2019, the matters were returned to the Board, where they were remanded for further evidentiary development. The increased rating claim for the Veteran's lumbar spine was remanded for the scheduling of an updated VA examination and a retrospective medical opinion addressing the severity of the Veteran's lumbar spine disability for the periods of June 24, 2008 to April 1, 2009 and from April 1, 2009 to the present, to include any limitation of motion during active and passive range of motion testing and upon repetitive use, as well as pain with weightbearing and non-weightbearing. The TDIU claim was remanded for notice to the Veteran of the evidence needed to substantiate the claim, as well as a request for the Veteran to complete VA Form 21-8940, Application for Increased Compensation Based on Unemployability. An updated VA examination was conducted in February 2020, with an addendum opinion issued in June 2020 addressing the point at which pain began during range of motion testing. The VA examiner also issued a February 2020 retrospective opinion addressing some of the inadequacies of past VA examinations, as discussed in the JMPR. Additionally, the RO mailed the Veteran a blank copy of VA Form 21-8940, and requested that the Veteran complete the form. The Veteran did not respond. The elements of a TDIU claim were provided to the Veteran in the August 2020 Supplemental Statement of the Case. The matters returned to the Board in December 2020, where they were again remanded for additional evidentiary development. The Board stated that the February 2020 VA examiner "addressed many of the concerns outlined in the November 2019 remand, to include indicating that pain was present on passive range of motion testing, [but] the report of the examination [did] not contain a clear discussion of the current and historical functional impact of that pain, to include whether it contributed to functional loss or additional limitation of motion." Regarding the historical periods, the Board found the VA examiner's explanation lacking on the issue of whether the Veteran's pain on passive motion resulted in any additional functional loss or limitation of motion not previously documented in past VA examinations. Similarly, regarding the February 2020 VA examination, the Board noted the VA examiner's report that passive range of motion was tested, but observed that passive range of motion was not described in terms of degrees, and there was no indication of where pain began and the functional impact/loss of such pain. The February 2020 VA examiner provided an addendum in February 2021, and regrettably, this opinion does not wholly comply with the Board's December 2020 remand directives, as discussed below. The Board is aware that the Veteran's appeal has been pending for several years, but the Board is bound by the precedential decisions of the Court, as discussed in the JMPR, and the Board cannot adjudicate these matters until the concerns of Correia have been fully addressed. 1. Entitlement to a noninitial disability rating in excess of 10 percent prior to April 1, 2009, and in excess of 20 percent thereafter, for the Veteran's service-connected lumbar spine disability is remanded. In February 2021, the February 2020 VA examiner issued an addendum opinion addressing the historical impact of pain on passive motion, if any, during the periods of June 24, 2008 to April 1, 2009, and from April 1, 2009 to the date of the February 2020 VA examination. The VA examiner correctly reviewed the applicable VA examinations, medical records, and the Veteran's lay reports from these periods, but was unable to provide an opinion regarding whether pain during passive motion testing, with weightbearing or non-weightbearing, or following repetitive use, resulted in any additional functional loss or limitation of motion. The VA examiner explained that the record lacked the information necessary for her to render an opinion, as the considerations from Correia were not documented at the time of the VA examinations conducted prior to the February 2020 examination, and the Veteran's medical records and lay statements were unavailing on this point. The VA examiner expressed her frustration, noting "no one has a crystal ball and can go back in time to give the [RO] or the [Board] an answer for something that does not exist." The VA examiner further stated that she could not give an answer for something that she could not see with her own eyes during that time, or provide an answer based on what someone else examined and witnessed, but did not document. She stated to do so would run afoul of medical ethics. The Board is persuaded by the explanation provided by the February 2020 VA examiner in the February 2021 addendum opinion, to the extent that the VA examiner fully explained why she is incapable of providing further opinion regarding any functional impact caused by pain with passive range of motion testing, pain with weightbearing and non-weightbearing, and/or following repetitive use, for the periods of June 24, 2008 to April 1, 2009, and from April 1, 2009 to the date of the February 2020 VA examination. The VA examiner indicated that the record did not contain sufficient information to allow for a reasonable estimation, and based on the current evidence, it would be unethical for her to provide a retrospective opinion in the absence of additional documentation. Indeed, the Board notes that despite appealing this matter to the Court, the Veteran has never provided any meaningful information to VA regarding the functional impact she has allegedly experienced in the past due to pain with passive motion testing, pain with weightbearing and non-weightbearing, and/or following repetitive use, beyond generalized complaints of pain, difficulty ambulating, and limitations in sitting, standing, or walking. For instance, she has not explained why she believes she has experienced a greater degree of limitation of motion due to the Correia factors, beyond what was already observed at the past VA examinations. Given this fact, and the February 2020 VA examiner's reasoned explanation in the February 2021 VA addendum opinion, the Board finds further evidentiary development regarding the historical impact of pain on function, as discussed in Correia, would be futile. Nevertheless, the Board finds a remand is warranted for the February 2020 VA examiner to provide additional information regarding the VA examination she conducted in February 2020. As noted by the Board in the December 2020 remand decision, the VA examiner noted pain with passive range of motion, but did not provide explicit passive range of motion measurements or indicate at what degree painful motion began during passive range of motion testing. Based on contextual clues in the examination report, it is likely that initial range of motion measurements documented on page 2 of the examination report constitute the Veteran's limitation of motion based on both active and passive testing (i.e., that the Veteran exhibited no difference in limitation of motion on both active and passive testing); and that painful motion began at the endpoints provided. However, the examiner did not expressly state this, and the Board is hesitant to adjudicate the Veteran's claims based on its own assumptions regarding the actions taken by the February 2020 VA examiner. Moreover, the December 2020 Board remand specifically required the examiner to delineate the functional impact of pain noted during passive range of motion testing at the February 2020 VA examination, and the examiner's failure to do so has rendered the examination incomplete. The examiner did not address this inquiry in the February 2021 addendum opinion. Accordingly, the Board finds that the proper remedy is to remand the matter for an additional VA medical opinion that properly addresses the passive motion considerations, and complies with the Board's December 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). 2. Entitlement to a TDIU is remanded. In the December 2020 Board remand decision, the Board stated, "[The Veteran's] overall combined disability rating is10 percent from August 3, 2003; 20 percent from April 1, 2009; 60 percent from September 21, 2010; 80 percent from March 28, 2016; and 90 percent from February 5, 2020. As such, she satisfies the requirements for schedular consideration of TDIU." However, 38 C.F.R. § 4.16(a) is clear that the schedular TDIU requirements are only satisfied in circumstances where, if there is one disability, it is rated at 60 percent or more, or if there are two or more disabilities, at least one is rated at 40 percent or more, and the Veteran has sufficient additional disability to bring the combined rating to 70 percent or more. Thus, even when considering the definition of a "single disability" under the enumerated circumstances set forth in 38 C.F.R. § 4.16(a), the Veteran did not satisfy the schedular TDIU criteria until March 28, 2016. To the extent that the December 2020 Board decision stated otherwise, it was incorrect. The results of the Veteran's increased rating claim for her service-connected lumbar spine disability remains pending, and has the potential to render the Veteran eligible for schedular TDIU consideration earlier than March 28, 2016. See 38 C.F.R. § 4.16(a). As such, the Veteran's claim seeking entitlement to a TDIU is inextricably intertwined with the pending increased rating claim for the Veteran's service-connected lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (determining that issues are inextricably intertwined when a decision on one issue would have a "significant impact" on a claim for the second issue). In the December 2020 remand decision, the Board requested that the RO again provide the Veteran with VA Form 21-8940 for completion. This was done via a January 2021 notice letter, with no response from the Veteran. The Veteran was previously reminded that VA's duty to assist is not a one-way street, and she cannot passively wait for VA's assistance when she has information that is essential to obtaining putative evidence. Given the Veteran's noncooperation, the Board shall place no further obligations on the RO to request a completed VA Form 21-8940 from the Veteran. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2020 VA examiner. The VA examiner is requested to review the February 2020 VA examination report and explicitly provide the passive range of motion measurements that were observed, and she is requested to indicate at what degree painful motion began during passive range of motion testing. If the February 2020 VA examiner is not available, the Veteran should be provided an updated VA examination of the lumbar spine. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. Range of motion findings for active and passive motion should be recorded separately, even if they are the same, and the point at which painful motion begins should be clearly stated. A goniometer should be used for all range of motion testing. Elicit information regarding the functional loss during flare-ups or with repeated use and opine as to whether functional ability would be additionally impacted after repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment in terms of degree of additional range of motion loss. If, after attempting to estimate additional loss of motion, an opinion cannot be rendered without resorting to speculation, the examiner must explain why. 2. Then readjudicate the Veteran's increased rating claim for her service-connected lumbar spine disability, as well as her claim seeking entitlement to a TDIU. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.