Citation Nr: 21031607 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-39 712 DATE: May 24, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative disc disease and degenerative joint disease of the lumbosacral spine prior to June 1, 2010, and in excess of 40 percent thereafter, is remanded. Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) prior to July 1, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1970 to September 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). In June 2019, the Board denied entitlement to higher staged ratings for the lumbar spine disorder and an effective date for TDIU prior to July 1, 2015. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Remand in which the parties agreed that the Board erred by failing to ensure that VA's duty to assist was satisfied. Specifically, the parties agreed that the Board relied on VA examinations that failed to address the Veteran's lumbar spine disorder during active and passive motion or the extent of functional impairment during flare-ups. The parties further agreed that, on remand, the Board "shall obtain both a new VA examination and a retrospective opinion to address the functional impact of pain, weakness, fatigability or incoordination...during flare-ups" and that the "new examination must also provide results of range of motion testing for [the Veteran's] lumbosacral spine for pain on both active and passive motion and in weight-bearing and non-weight-bearing mode...." Pursuant to the parties agreement in the Joint Motion for Remand, the Board finds that these matters must be remanded for completion of a VA examination and retroactive medical opinion discussing the active and passive range of motion with pain, and on weightbearing and non-weightbearing, and the Veteran's functional impairment during flare-ups. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA provides a medical opinion, it must be adequate for decisional purposes). The claim for a TDIU prior to July 1, 2015, is inextricably intertwined with the claim for an increased rating for the lumbar spine disorder, and will be remanded pending additional development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Board is aware that the Veteran later requested that VA obtain only a medical opinion instead of an examination, due to concerns over COVID-19 and the fact that his spine disorder makes it difficult to appear for VA examinations. See VA 646, April 2021. However, the parties to the Joint Motion for Remand specifically agreed that VA shall obtain "both a new VA examination and a retrospective opinion", and requested that VA obtain range of motion testing on active and passive range of motion that can only be completed through an in-person VA examination. If the Veteran has concerns at the present time over appearing in person for a VA examination, he may contact the regional office and request that the examination be rescheduled for a time when he feels safe and able to appear. The matters are REMANDED for the following actions: 1. Please secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorder on appeal. 2. Schedule the Veteran for a VA examination and medical opinion relevant to his lumbar spine disorder. The examiner is asked to describe the severity of the disorder in detail and list all symptoms necessary for rating it under the relevant criteria. The examination report should document the active and passive range of motion for the lumbar spine and test for pain in active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the testing, he or she should clearly explain why such testing is impossible. If the Veteran reports current flare-ups, the examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran's flare-ups, and then estimate the extent of any additional functional loss in degrees of lost range of motion during such periods. If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not a limitation of personal knowledge. Additionally, the examiner is asked to offer a retroactive medical opinion discussing the Veteran's flare-ups of lumbar spine symptoms, expressed in degrees of lost range of motion, during the rating period. In particular, the examiner is asked to review the February 2011 VA examination report and estimate the functional loss in degrees of lost range of motion during flare-ups at that time. If the examiner is unable to provide a retroactive estimate of the Veteran's functional loss during flare-ups, he or she must have reviewed all procurable and assembled data and must indicate that the inability to provide such an estimate results from limitations in the knowledge of the medical community at large, and not a limitation of personal knowledge. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.