Citation Nr: 21030909 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-36 948 DATE: May 20, 2021 REMANDED Entitlement to a disability rating higher than 20 percent for the period prior to November 28, 2018 for a lumbar spine disability, is remanded. Entitlement to a disability rating higher than 10 percent for the period from May 30, 2013 for right lumbar radiculopathy, is remanded. Entitlement to a disability rating higher than 10 percent for the period from May 30, 2013 through November 27, 2018 for left lumbar radiculopathy, is remanded. Entitlement to a disability rating higher than 20 percent for the period from November 28, 2018 for left lumbar radiculopathy, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 28, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to August 1974. The matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and February 2014 rating decisions of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In April 2019, the Veteran testified during a travel Board hearing before the undersigned Veterans Law Judge. Procedural History In its January 2020 decision and remand, the Board determined that a reduction in the 20 percent disability rating for the Veteran's lumbar spine disability was improper; restored the rating; denied a higher rating for the lumbar spine disability prior to November 28, 2018, granted a 40 percent rating for the lumbar spine disability from November 28, 2018; granted a separate 10 percent rating for right lumbar radiculopathy; granted a separate 10 percent rating for left lumbar radiculopathy from May 30, 2013 through November 27, 2018; and granted a separate 20 percent rating for left lumbar radiculopathy from November 28, 2018. Additionally, the Board remanded the Veteran's claim for entitlement to a TDIU for referral to the Director of VA's Compensation and Pension Service for consideration on an extraschedular basis. See Board Decision and Remand dated January 30, 2020. The Veteran appealed the Board's January 2020 denial of the increased rating claims for the lumbar spine disability and right and left lumbar radiculopathies to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the increased rating issues, but not disturbing restoration of the 20 percent rating for the lumbar spine disability, the 40 percent rating for the lumbar spine disability from November 28, 2018, the separate 10 percent rating for right lumbar radiculopathy, the separate 10 percent rating for left lumbar radiculopathy from May 30, 2013 through November 27, 2018, or the separate 20 percent rating for left lumbar radiculopathy from November 28, 2018. Additionally, the JMPR acknowledged that the TDIU claim, having been remanded by the Board, was not before the Court. See Court Order dated December 14, 2020; JMPR dated December 8, 2020. The JMPR represents agreement between the parties (the Veteran and VA Office of General Counsel) that the Board erred by not providing an adequate statement of reasons or bases for its decision in that it relied on an August 2013 VA examination the parties conclude is inadequate under the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017), failed to address manifestations of the Veteran's lumbar spine disability other than pain, and did not sufficiently explain its finding that the evidence of record does not reflect "moderate" radiculopathy. See JMPR dated December 8, 2020 at pgs. 2-6. Pursuant to the JMPR, the Board sent the Veteran notice that he could submit additional evidence and argument in support of his appeal before the Board would proceed with readjudication. See Board letter dated December 30, 2020. To date, the Veteran has submitted additional argument, but no additional evidence in support of his appeal. See Appellate Brief received May 5, 2011. Lumbar Disabilities Remand is appropriate as recent treatment records suggest that the Veteran's low back pain and lumbar radicular symptoms may be worse. See VA Primary Care Note dated June 22, 2020. As the Veteran's June 2020 VA treatment records indicate that his symptoms are worse than when he was previously examined in November 2018, a new examination should be afforded to him. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). On remand, additional development shall be undertaken relevant to the issues identified in the JMPR. TDIU As noted above, the Board's January 2020 remand instructed the AOJ to refer the Veteran's claim for entitlement to a TDIU to the Director of VA's Compensation and Pension Service on an extraschedular basis. See Board Decision and Remand dated January 30, 2020 at pg. 24. The AOJ made such referral; however, the Director replied that as the Veteran met the schedular criteria for a TDIU, it was necessary that the AOJ consider schedular entitlement to a TDIU prior to submitting a request for review by the Compensation and Pension Service. See Correspondence from Director, Compensation Service dated December 21, 2020. The AOJ granted TDIU on a schedular basis effective November 28, 2018 and concluded that referral for extraschedular consideration was not warranted. See Rating Decision dated December 28, 2020; Supplemental Statement of the Case dated December 28, 2020. The claim was then returned to the Board for further appellate review. The Board has no authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Furthermore, the Veteran's TDIU claim is part and parcel with his pending lumbar spine rating claim, which commenced in May 2013. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (the determination of whether a claimant is entitled to a TDIU, including the effective date for that award, is part and parcel of the determination of the rating for that disability). The record reflects that the Veteran does not presently meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) for the entire rating period dating from May 2013. Moreover, resolution of the Veteran's increased rating claims may also influence the merits of his claim for a TDIU. Accordingly, the TDIU claim is inextricably intertwined with the other claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, remand of the inextricably intertwined TDIU claim is also required, to include extraschedular consideration under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, provide the Veteran VA examinations by an appropriately qualified VA clinician(s) to identify the severity of his lumbar spine disability and right and left lumbar radiculopathies. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted, and all findings clearly reported in detail. After a thorough review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his lumbar spine strain. Indicate any and all associated orthopedic AND neurologic manifestations. **In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). 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. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). (d) To the extent possible, provide a retrospective opinion with respect to the level of functional impairment due to the Veteran's lumbar spine disability, to include assessing functional loss on repetitive use and due to flare-ups from the commencement of the rating period in May 2013. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). (e) Identify any functional impairment (attributable to the service-connected orthopedic and neurologic disabilities) in the Veteran's ability to perform work or worklike tasks during the period on appeal from May 2013 through November 2018. A complete rationale should be provided for all opinions. 3. Ensure that the examiner(s) has substantially responded to the questions posed by the Board, and if not, take corrective action. Thereafter, readjudicate the remanded claims. Should the Veteran not meet the regulatory threshold for a schedular TDIU for any period since the commencement of the rating period in May 2013, refer the claim to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.