Citation Nr: 21039927 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 09-47 546 DATE: July 1, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to February 4, 2021, and 40 percent thereafter, for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in March 2016. This case was previously before the Board in June 2013, May 2016, May 2018, August 2019, and April 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. 1. Entitlement to a rating in excess of 20 percent prior to February 4, 2021, and 40 percent thereafter, for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome is remanded. The Veteran was provided a VA back conditions examination in February 2021 which the Board finds is inadequate because it is inconsistent with the previous VA back conditions examinations, as well as the medical evidence of record. First, the February 2021 VA examination reflects that the Veteran has full range of motion on initial range of motion measurements in all movements except for forward flexion. However, previous VA examinations reflect that the Veteran did not have full range of motion in any movement, and the medical evidence of record establishes that the Veteran's back condition has worsened over time. Thus, it is unclear how the Veteran's back condition worsened, but her initial range of motion improved. Second, the February 2021 VA examination reflects that the Veteran only has radiculopathy of the left lower extremity, however, she is service connected for radiculopathy of both lower extremities. The Board also notes that the VA examiner's evaluation of the Veteran's radiculopathy of the left lower extremity contradicts previous VA examinations without any explanation as to why. Finally, the February 2021 VA examiner stated that the Veteran does not use assistive devices, however, previous VA examinations reflect that the Veteran uses a cane to ambulate as a result of her lumbar spine disability, and June 2014 and July 2015 VA treatment records reflect that the Veteran was ordered a back brace. Thus, remand is warranted for a new VA examination regarding the Veteran's back disability. The Board also notes that the record establishes that the Veteran was incarcerated during part of the time period on appeal, but that the claims file does not contain any medical records from the Veteran's period of incarceration. Therefore, on remand, efforts should be made to obtain these records and associate them with the claims file. 2. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the rating assigned for the Veteran's service-connected back disability, and therefore, is remanded. 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 matters are REMANDED for the following action: 1. After securing the necessary releases, attempt to obtain and associate with the record the Veteran's complete prison medical treatment records. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that she can make an attempt to obtain those records on her own behalf. 2. Schedule the Veteran for a VA examination (or telehealth interview, if an in-person examination is not feasible), with a clinician who has not previously examined the Veteran, to determine the current nature and severity of her service-connected lower back disability. After reviewing the entire claims file, the selected examiner should conduct all indicated tests and studies, to include range of motion testing. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.