Citation Nr: 21041472 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 11-08 422 DATE: July 9, 2021 REMANDED For the rating period beginning October 7, 2013, a rating in excess of 20 percent for degenerative changes of the thoracolumbar spine, is remanded. Entitlement to a total evaluation based on individual unemployability (TDIU) due solely as a result of one service-connected-disability, and with consideration of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s), is remanded. Preliminary Matters The Veteran served on active duty from June 1974 to December 1988, from February 1991 to March 1991, and from March 2006 to September 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied an initial rating for degenerative changes of the thoracolumbar spine in excess of 10 percent for the period from December 4, 1988 to March 26, 2006. The Board also granted a 20 percent rating from March 27, 2006 to October 6, 2013, and denied a rating in excess of 20 percent beginning October 7, 2013. Additionally, the issue pertaining to whether separate ratings for neuropathy of the lower extremities was remanded for further development. Thereafter, in an October 2020 rating decision, the RO granted 40 percent ratings effective October 7, 2013 for both the right and left lower extremities. The remand of these issues from the November 2019 Board decision is still pending as a supplemental statement of the case (SSOC) has not been issued addressing these matters. As it pertains to the spine issue currently before the Board, the Veteran appealed the November 2019 decision which denied a rating in excess of 20 percent beginning October 7, 2013 to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an order granting a Joint Motion for Partial Remand (JMPR). The Veteran did not appeal the parts of the Board decision that denied entitlement to a rating in excess of 10 percent for degenerative changes of the thoracolumbar spine for the initial rating period from December 4, 1988 to March 26, 2006, and a rating in excess of 20 percent for degenerative changes of the thoracolumbar spine from March 27, 2006 to October 6, 2013. REASONS FOR REMAND Thoracolumbar Spine Disability Rating Beginning October 7, 2013 The August 2020 JMPR found that the most recent VA spine examination of record, dated in August 2019, was not adequate because it did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, a remand for a new VA examination is required. TDIU and SMC The Veteran is currently in receipt of a combined 100 percent schedular rating for his service-connected disabilities beginning October 7, 2013. The Veteran's representative has indicated that the Veteran has not worked since 2017 primarily due to his service-connected PTSD disability. See July 1, 2021 correspondence. A 100 percent schedular rating is a higher benefit than a TDIU. Thus, when a 100 percent rating has been granted a TDIU claim is often moot. However, the assignment of a 100 percent schedular rating does not necessarily render the issue of TDIU moot. There could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and nonetheless could establish entitlement to a TDIU for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). Bradley v. Peake, 22 Vet. App. 280 (2008); see also 38 U.S.C. § 1114 (s). For example, if it were determined that the Veteran's PTSD, alone, satisfied the criteria for a TDIU, then he would have one disability rated as "total" with additional disabilities combining to at least 60 percent, which in turn would warrant SMC under 38 U.S.C. § 1114 (s). Thus, the issue of a TDIU is not moot for the period beginning in 2017 (the date the Veteran last worked). Although the Veteran's representative has indicated that the Veteran last worked in 2017, the evidence of record does not include a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. This form includes relevant information regarding a veteran's work and education history, income earned, and other information regarding employment or attempts to obtain employment. Therefore, in order to properly adjudicate the Veteran's TDIU and SMC claim, the AOJ should send the Veteran proper notice, and shall ask the Veteran to complete a VA Form 21-8940. The matters are REMANDED for the following actions: 1. Provide the Veteran appropriate notice in connection with the claim for TDIU. The Veteran should be requested to complete an Application for Increased Compensation based on Unemployability (VA Form 21-8940). 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Provide the Veteran with a VA spine examination to identify, to the extent possible, the severity of his thoracolumbar spine disability beginning October 7, 2013. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a.) Elicit from the Veteran all signs and symptoms of his spine disability since October 7, 2013. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b.) Full range of motion testing must be performed where possible. The spine should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non-weight-bearing situations. If the Veteran is unable to perform the testing because it is too painful or difficult, the examiner MUST ask the Veteran to provide the information by description. 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. If pain is found during the examination, the examiner should note when the pain begins. (c.) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **In this regard, based on the Veteran's lay reports and evidence of record, attempt to estimate any additional limitation of range of motion since October 7, 2013. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (Continued on the next page) 4. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.