Citation Nr: 21030624 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-40 708 DATE: May 19, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 2008 to June 2012, including combat service in Afghanistan and his decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in March 2020. This matter was remanded by the Board in April 2020 for additional development. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran is employed and that he has not reported that his service-connected disability on appeal precludes substantially gainful employment. See VA Examination, August 2020. Therefore, the issue of entitlement to a TDIU is not before the Board. 1. Entitlement to a disability rating in excess of 10 percent for thoracolumbar spine is remanded. In March 2016, the Veteran stated that his low back disability was worse than the 10 percent rating contemplates. In April 2016, a VA examination was conducted, which noted that the Veteran has normal range of motion and does not report flare-ups. However, the Veteran testified during the March 2020 hearing that the examination was inadequate. In fact, the Veteran testified that he has increased back pain with debilitating flare ups, has lost work due to his back pain, and takes medication for the pain. Based on the Veteran's testimony, in April 2020, the Board found the April 2016 VA examination inadequate and remanded this issue for a new examination. In August 2020, a VA examination was conducted where the Veteran reported that his back disability is progressively worse. He stated that he began using alcohol to cope with his back pain and related depression. The Veteran reported constant dull pain that prevents sleep and occasional sharp pain that wakes him up at night. He also stated that his flare ups can become debilitating and severe with constant sharp pain once or twice a month and can last two to three days. The Veteran reported functional impairment that causes him to be unable to run, lift heavy objects, or drive, sit, or stand for extended periods of time. The examiner noted the Veteran's initial range of motion as abnormal but recorded all normal ranges of motion measurements. The examiner also noted pain during extension but did not note evidence of pain with weight bearing or objective evidence of localized pain or tenderness with palpation and the Veteran was able to perform repetitive use testing with no additional loss recorded. The examiner estimated that the Veteran's forward flexion range of motion would be limited to 85 degrees during a flare up and stated that pain, weakness, fatigability, or incoordination will significantly limit the Veteran's functional ability during a flare up. In May 2020, the Veteran's direct supervisor at his employment submitted a statement noting that it was made apparent that the Veteran struggled to bend over to perform even minor lifts due to his service-connected back disability causing necessary accommodations to be made for the Veteran. The Board finds that this statement corroborates the Veteran's report regarding the nature and extent of his back symptoms. Given the Veteran's testimony and the other lay evidence of record, the Board finds that the August 2020 VA examination does not accurately reflect the Veteran's credible lay statements regarding the severity of his symptoms and is therefore deemed inadequate. As such, the Board finds that a remand is necessary to obtain a new examination. The Board notes that the Veteran also testified that as a consequence of his back disability he has several other disabling manifestations. In this regard, the Board finds his March 2020 Board testimony that he experiences pain down both his legs both and credible As to the Veteran's testimony that his low back pain impacts his ability to both fall asleep and stay asleep; and that his back pain and corresponding functional impairment causes him to feel depressed, irritable, and anxious, the Board observes that the July 2020 examiner who performed the Veteran's VA psychiatric examination attributed them to his service-connected posttraumatic stress disorder (PTSD). In July 2020, a VA examination was obtained to address the Veteran's contentions. During the examination, the Veteran stated that it was the Board remand that initiated the claim for depression, sleep problems, and anxiety. After a review of the Veteran's medical record, the examiner stated that the Veteran's presentation during the examination is not consistent with separate diagnoses associated with such disorders. Instead, these symptoms seem integral to the Veteran's overall diagnosis of PTSD; the Veteran's occupational and social impairment has not been modified, the Veteran is working, and he also agreed to this characterization of his functioning in this area of his accounts of work and social status. The examiner stated that the symptoms in question, including depression, anxiety, fatigue, and sleep issues do not constitute symptoms of a separate disorder from his already service-connected PTSD as they are symptoms integral to PTSD. While fatigue, as a problem, may be related to his back problems, the examiner concluded that it is much more likely than not that it does not constitute a separate or diagnosable psychiatric disorder for this Veteran. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit medical or lay statements from himself and from other individuals who have first-hand knowledge of the onset, nature, extent, and severity of his back, right lower extremity and left lower extremity symptoms. The Veteran should also be invited to discuss the medication he uses to treat his back disability. The Veteran should be provided an appropriate amount of time to submit this medical and/or lay evidence. 2. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his low back disability and/or associated radiculopathy. All necessary tests should be performed. All findings should be reported in detail. The examiner should identify all musculoskeletal disabilities related to the above condition found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's credible lay statements relating to his back and lower extremity pain and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. In doing so, the examiner must discuss the Veteran's pain medication regimen. (Continued on the next page) If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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 by a deficiency in the record or the examiner (i.e. additional facts are required), or the examiner does not have the needed knowledge or training. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.