Citation Nr: 21032212 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-17 252 DATE: May 26, 2021 REMANDED Entitlement to an initial rating in excess of 40 percent for a low back disorder, to include degenerative joint disease (DJD), disc herniation, and lumbar spine sprain is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1976 to December 1980. The Veteran testified at a March 2020 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veteran asserts that his service-connected low back disorder and right lower extremity radiculopathy are more severe than currently evaluated. At his March 2020 hearing before the Board, the Veteran highlighted symptoms suggesting worsening since he was last evaluated by VA. Importantly, the Veteran appeared at a VA-contract spine examination after his Board hearing, but range of motion testing was unable to be completed due to the Veteran's pain. See a November 2011 examination report. That stated, at the examination, the Veteran indicated that he suffered from flare-ups of his spine daily, lasting all day, and that functional loss due to his spine results in an inability to move. After review of the record, the Board believes that an updated examination should be scheduled before an informed decision on the Veteran's rating claims can be issued. In particular, the Board believes there is an open medical question as to whether the Veteran's flare-ups manifest in a degree of disability that would be the functional equivalent of ankylosis, which may warrant the assignment of a higher rating. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (April 16, 2021). During the Veteran's hearing, the issue of entitlement to a TDIU was reasonably raised, and added to this appeal. Significantly however, in February 2021 written correspondence, the Veteran requested that his TDIU claim be withdrawn. It appears that, in September 2020, after his March 2020 Board hearing, the Veteran initiated a new claim for a TDIU with the AOJ. It is unclear from the Veteran's filing as to whether the Veteran, by his February 2021 statement, was attempting to withdraw his newly-submitted claim with the AOJ (as it remained pending with the Board at the time), or whether the Veteran intended to withdraw the TDIU issue entirely, to include from this appeal. Given this ambiguity, the Board will not dismiss the Veteran's TDIU claim at this time. Because the development ordered in relation to the Veteran's spine and radiculopathy claim may impact the outcome of the Veteran's TDIU claim, the matter is also remanded as intertwined. If it is indeed the intent of the Veteran to withdraw his TDIU appeal, he or his representative should provide a statement in writing indicating as much. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to assess the severity of his service-connected spine disability and right lower extremity radiculopathy. The claims file should be sent to, and reviewed by the examiner, and the examiner should take a history from the Veteran as to the progression of the disabilities. The examiner should attempt to provide range of motion assessments. If they cannot be completed, the reason why should be made clear. The examiner should describe the frequency and severity of the Veteran's reported flare-ups. Even if the Veteran is not experiencing a flare-ups at the time of the examination, the examiner should provide an estimate to how much additional range of motion loss exists during flare-ups, and after repetitive use. The examiner should indicate whether it is at least as likely as not that during a flare-up, or after repetitive use, the Veteran experiences the functional equivalent of ankylosis (either favorable, or unfavorable please specify). The examiner should also discuss the progression and current severity of the Veteran's right lower extremity radiculopathy. 2. Readjudicate the issues on appeal, to include entitlement to a TDIU, unless the Veteran or his representative specifically withdraw the TDIU claim. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.