Citation Nr: 21039928 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 11-19 555 DATE: July 1, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for a lumbar strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 5, 2019, is remanded. REASONS FOR REMAND The Veteran had active service from July 2001 to July 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in September 2012 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In June 2014, the Board issued a remand on these claims. In January 2020, the RO granted an increased evaluation of 10 percent for a lumbar strain, effective September 22, 2014. A February 2020 rating decision granted entitlement to a TDIU, effective December 5, 2019. A June 2020 Board decision granted entitlement to an initial 10 percent rating, but no higher, for a lumbar strain, and found that prior to December 2019, the Veteran was either seeking vocational services or employed, therefore no action on the issue of entitlement to a TDIU was warranted pursuant to Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the June 2020 Board decision was partially vacated and remanded back to the Board. 1. Entitlement to an initial rating higher than 10 percent for a lumbar strain. The Veteran seeks entitlement to an initial rating higher than 10 percent for his lumbar strain. In the February 2021 JMPR, the parties determined that the March 2010 VA examination was inadequate because although the examiner acknowledged the Veteran had flare-ups, the examiner failed to indicate whether there was any additional loss of range of motion due to pain on flare-ups. The JMPR indicates that VA assistance may include obtaining a retrospective medical opinion, citing to Chotta v. Peake, 22 Vet. App. 80 (2008). As such, on remand, a retrospective opinion should be obtained. The parties also determined that the September 2014 and November 2019 VA examinations were inadequate, noting that the September 2014 VA examination did not comply with Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). The parties agreed that the November 2019 VA examination report included an "incorrect factual basis," explaining that the examiner indicated that imaging studies had not been conducted and were not available; however, x-rays were taken in March 2011 and July 2012 and read as normal and x-rays taken in March 2019 showed minimal degenerative disc disease and joint disease changes at L5-S1. As such, on remand, the Veteran should be afforded a new VA examination. 2. Entitlement to a TDIU, prior to December 5, 2019. The Veteran seeks entitlement to a TDIU, prior to December 5, 2019. In the February 2021 JMPR, the parties agreed that the Board should consider whether the Veteran's employment prior to December 5, 2019 was marginal. The evidence of record is insufficient to determine whether the Veteran's employment prior to December 2019 constituted marginal employment. On remand, the Veteran should be provided with an opportunity to supply relevant information in support of his claim for entitlement to a TDIU, including salary information for the period on appeal prior to December 5, 2019, and any additional evidence in support of his assertion that his employment during this period was marginal. The matters are REMANDED for the following action: 1. Appropriately develop the Veteran's TDIU claim, to include obtaining income information, for a determination on whether any employment prior to December 5, 2019 qualifies as marginal. 2. Afford the Veteran a VA examination to determine the current severity of his lumbar strain. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. *All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the lumbar spine and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) per DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the lumbar spine cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. *The examiner should also retrospectively determine the functional loss in terms of limitation of motion of the Veteran's service-connected lumbar spine disability, prior to September 22, 2014. The functional impact of flare-ups, including on repeated use, in terms of degrees of range of motion must be estimated, prior to September 22, 2014, to include consideration of the results of the March 2010 VA examination report. Rationale for all opinions expressed should be provided. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.