Citation Nr: 21028929 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-22 832 DATE: May 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a low back strain with degenerative arthritis and intervertebral disc syndrome for the period prior to December 30, 2019, is remanded. Entitlement to a rating in excess of 20 percent for a low back strain with degenerative arthritis and intervertebral disc syndroe for the period from December 30, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to July 1981. These matters came to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in August 2018, April 2019, and March 2021 on which occasions the claims were remanded. 1. Entitlement to a rating in excess of 10 percent for a low back disability for the period prior to December 30, 2019, is remanded. 2. Entitlement to a rating in excess of 20 percent for a low back disability for the period from December 30, 2019, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the Veteran's claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to an increased rating for a low back disability. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an April 2019 Board decision, the Veteran's claims were remanded for a new VA thoracolumbar spine examination. In remanding the claims, the Board directed the examiner to "test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing." The Board notes that following the April 2019 Board decision, the Veteran's claims were once again remanded in a March 2021 Board decision. The March 2021 remand was predicated on the RO's failure to proffer a Supplemental Statement of the Case prior to returning the Veteran's claims to the Board for adjudication. The Board did not address whether the RO substantially complied with the April 2019 remand directives at that time. In accordance with the April 2019 remand directives, the Veteran was afforded a VA examination in January 2020. The examiner tested the Veteran's initial range of motion (ROM), ROM after observed repetitive use, ROM after repeated use over time, and ROM during flare-ups. However, the examiner did not test the Veteran's ROM during passive range of motion or during non-weight bearing. The examiner indicated that passive ROM testing could not be performed in a "safe and reasonable manner," and that non-weight bearing ROM testing was not applicable. 01/16/2020 C&P Exam at 15. The Board notes that the January 2020 examiner's findings regarding the feasibility of passive ROM and non-weight bearing ROM testing is inconsistent with other medical evidence of record. Specifically, passive ROM and non-weight bearing ROM testing were conducted during the July 2017 VA examination. 07/14/2017 C&P Exam at 31. Given that the Board specifically directed the examiner to test passive ROM and non-weight bearing ROM, and the inconsistent evidence regarding the feasibility of these tests, the Board finds that the claim must be remanded for a new VA thoracolumbar spine examination. Should the examiner conclude during the new examination that passive ROM and non-weight bearing ROM testing is not feasible, the examiner must explain why the testing could not be completed. Additionally, the Board notes that the Veteran has complained of urinary incontinence during the period on appeal. 09/14/2020 CAPRI at 163, 450; 01/13/2018 CAPRI at 156. When evaluating a lumbar spine disability, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any associated neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71A. Therefore, when considering an increased rating for a lumbar spine disability, all associated neurologic abnormalities, including bowel or bladder problems, are at issue as well. While the January 2020 examiner did address whether the Veteran suffered from neurologic abnormalities related to his low back disability, indicating that he did not, the examiner did not address the Veteran's complaints of urinary incontinence. In failing to note the Veteran's complaints of urinary incontinence, the examiner failed to report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Upon remand, a VA examiner should opine whether the Veteran's complaints of urinary incontinence is a neurologic abnormality associated with the Veteran's service-connected low back disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As a decision on the remanded issue of entitlement to an increased rating for a low back disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following actions: 1. The AOJ should obtain updated VA treatment records for the period from March 11, 2021 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner MUST test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. Additionally, the examiner MUST attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without 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. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. The examiner should specifically comment on whether the Veteran has urinary incontinence associated with his low back disability. The examiner is to provide a statement concerning how the lumbar spine disability affects functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations he would experience as a result of his lumbar spine disability. The examiner must provide a comprehensive rationale for the opinions. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.