Citation Nr: 21031267 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-06 344 DATE: May 21, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to December 6, 2019, and in excess of 40 percent thereafter for intervertebral disc syndrome with degenerative arthritis and spinal fusion (low back disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 16, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1978 to June 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran, and his spouse, testified before a Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. A November 2020 Board letter notified the Veteran that the VLJ who conducted his April 2019 hearing was no longer employed with the Board. The Board afforded him 30 days to respond to the notice letter with a request for a new hearing before another VLJ. 38 C.F.R. § 19.3(b). No response was received and, in accordance with the notice given to him, the Board assumes he does not seek another hearing in these matters. These matters were previously remanded by the Board in October 2019 and March 2021 for further development, to include most recently issuance of an SSOC following the increase in rating disability for the back condition. The matters return to the Board for appellate consideration. 1. Entitlement to a rating in excess of 20 percent prior to December 6, 2019, and in excess of 40 percent thereafter for intervertebral disc syndrome with degenerative arthritis and spinal fusion (low back disability) is remanded. The Veteran contends that his back disability is more severe than contemplated by the assigned disability rating. Although the Board regrets the delay, another remand is required before an appellate decision can be rendered in this matter. Pursuant to the October 2019 Board remand, a December 2019 VA examination was administered. The examination reflected abnormal ranges of motion in the spine, with pain noted but no functional loss. The examination also demonstrated evidence of pain upon weight bearing, functional loss upon repetitive use over time and flare ups, guarding and muscle spasms, and intervertebral disc syndrome (IVDS). The Veteran reported decreased range of motion, disturbance in locomotion, and pain with prolonged standing or sitting. The examiner noted objective evidence of pain upon non weight bearing but did not provide passive range of motion measurements and indicated that it could not be performed or is not medically appropriate. The Board find the December 2019 examination is inadequate. The examiner failed to include a discussion on passive range of motion measurements. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. That final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Correia, 28 Vet. App. at 169-170. However, in this case, the examiner did not provide a detailed reason why the required passive range of motion testing could not be performed. As such, a new VA examination is needed to fully ascertain the nature and severity of the Veteran's back condition. The Board also notes that a revised criterion for rating musculoskeletal claims pursuant to 38 C.F.R. § 4.71a came into effect February 7, 2021. As the Veteran's claim for his back condition is rated under Diagnostic Codes (DC) 5010-5243, which in part has been revised, the current severity of the back should be evaluated under these revised regulations. 2. Entitlement to a TDIU due to service-connected disabilities prior to April 16, 2019 is remanded. The Veteran seeks entitlement to TDIU prior to April 16, 2019. The Board notes that the Veteran is in receipt of a 100 percent VA schedular rating for a psychiatric disability effective from April 16, 2019, along with special monthly compensation (SMC) under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). The Veteran's VA TDIU application, VA Form 21-8940, evidences his reports that his back disability precluded his employment. He last worked full-time in October 2011 and has been too disabled to work since March 2012. See VA Form 21-8940 (June 2019). The record shows that, prior to April 16, 2019, service connection was established for low back disability, evaluated as 20 percent disabling, and right shoulder disability, evaluated as noncompensable, bringing his combined disability rating to 20 percent. However, because a decision on the remanded issue discussed above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, a decision on the claim for a TDIU would be premature, and a remand is also required pending resolution of the intertwined claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the severity of his back condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If feasible, and if current findings contradict those from prior examinations, the examiner should endeavor to provide retrospective findings of the nature and severity of the back disability over the claim period. To comply with the Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of the back. 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. 2. Undertake any additional development deemed warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.