Citation Nr: 21030888 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-11 010 DATE: May 19, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a back disability prior to December 7, 2017, in excess of 20 percent prior to May 30, 2019 and in excess of 40 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 2001 to August 2004. These matters have previously been before the Board, most recently in August 2019 when they were remanded for further development. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran has been in receipt of a 100 percent disability rating from June 20, 2019. In August 2019, the Veteran's claim to a higher rating for his back disability was remanded because March and May 2019 VA examination reports contained contradictory information. In August 2019, an addendum opinion was obtained. This examiner stated that the May 2019 report of range of motion was that demonstrated by the Veteran at the time. The examiner stated that if she saw a veteran is capable of additional range of motion but then limits their range of motion upon formal testing, she reports that. The examiner opined the Veteran's degree of limitation and report of symptoms was higher than one would anticipate given the lack of objective abnormalities on radiographic studies, but that they may be authentic. Lastly, the examiner clarified that the Veteran did not have symptoms of ankylosis at rest or with flare ups. However, an MRI was not obtained and an explanation for why one was not ordered is not part of the Veteran's file. It has been noted in the Veteran's file that he previously refused such testing. In a written brief submitted by the Veteran's representative in May 2021, the Veteran's representative asserted the Veteran had not in fact previously refused this testing and that the Veteran was willing to report for an MRI because this test could aid in supporting his claim for a higher rating. The Veteran's representative also asserted the May 2019 addendum opinion was not adequate because it was based on assumptions and speculation. However, the Board disagrees. On remand, the examiner was asked to clarify about different statements she made during the two 2019 examinations (saying in March that the Veteran's back disability "had less movement than normal due to ankylosis, adhesions, etc.," and then saying the Veteran did not have ankylosis. In May 2019, the examiner determined the Veteran's forward flexion was limited to 10 degrees during a flare up. The August 2019 addendum explained the reason for the differing statements is discussed above, with the examiner noting she reports based on what the Veteran shows that day of testing. Additionally, the examiner clarified that the Veteran did not have ankylosis. Therefore, the Board finds that another examination is not warranted as this addendum opinion adequately addressed the questions on remand. However, because the Veteran had previously requested an MRI, has not recently refused such testing (noting that his record indicates previous refusal of such testing in April 2012 and June 2016), and there is no explanation in the Veteran's file as to why such testing is not appropriate, another remand is warranted to determine whether the Veteran should be afforded an MRI. Stegall v. West, 11 Vet. App. 268, 271. It is important to note that the Board is not requiring or even indicating that an MRI should be obtained. The Board finds the issue of TDIU has been raised by the record, with the March and May 2019 examiners indicating the Veteran's ability to work is impacted by his back disability. However, because a decision on the increased rating claim could impact a decision on the TDIU claim, this matter will be remanded as it is inextricably intertwined with the other matter being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). It is important for the Veteran to understand that indications of exaggeration in the record do not serve the Veteran's interest. When being examined, he must provide accurate information. The matters are REMANDED for the following action: 1. Obtain any of the Veteran's outstanding VA and private medical records and associate them with the claims file (if any). If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. In order the comply with the earlier Remands, an addendum opinion should be sought from a qualified medical professional to determine whether an MRI test is appropriate for this Veteran. If such testing is appropriate, schedule the Veteran for such. If such testing is deemed unnecessary, an opinion and explanation as to why it is not appropriate should be added to the Veteran's file. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.