Citation Nr: 21042416 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-17 781 DATE: July 13, 2021 REMANDED Entitlement to an initial disability rating higher than 10 percent disabling for degenerative disc disease of the cervical spine with intervertebral disc syndrome (IVDS) before May 20, 2014, is remanded. Entitlement to a rating higher than 20 percent disabling for degenerative disc disease of the cervical spine with IVDS after May 20, 2014, is remanded. Entitlement to an initial disability rating higher than 10 percent disabling for degenerative disc disease of the lumbar spine IVDS before May 20, 2014, is remanded. Entitlement to a disability rating higher than 20 percent disabling for degenerative disc disease of the lumbar spine with IVDS after May 20, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) before May 20, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from June 1965 to May 1967. These matters come before the Board of Veterans' Appeals (Board) from a rating decision issued in March 2011 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing in May 2017 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. The issues were twice before the Board, in December 2017 and April 2020. The April 2020 Board decision denied the claims. The Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court). In a February 2021 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's denial, and remanded the matter to the Board for development consistent with the JMPR. 1. Entitlement to an initial disability rating higher than 10 percent disabling for degenerative disc disease of the cervical spine with IVDS before May 20, 2014, is remanded. 2. Entitlement to a rating higher than 20 percent disabling for degenerative disc disease of the cervical spine with IVDS after May 20, 2014, is remanded. 3. Entitlement to an initial disability rating higher than 10 percent disabling for degenerative disc disease of the lumbar spine IVDS before May 20, 2014, is remanded. 4. Entitlement to a disability rating higher than 20 percent disabling for degenerative disc disease of the lumbar spine with IVDS after May 20, 2014, is remanded. In the February 2021 JMPR, the Veteran's attorney and the Board agreed that the VA examinations of November 2009, July 2010, May 2014, and April 2019, which the Board relied on for its April 2020 denial, were inadequate. The parties noted that the Veteran reported sharp pain when it occurred, in the neck and the back, his continued use of "two or three Ibuprofen 200 mg over-the-counter tablets per day, for a few days when either his neck or low back [was] in trouble," stiffness in the neck, and worsening neck pain if he looked up and down. As the above reports of flare-ups were not fully addressed, nor did the examiners note whether and at what point during the range of motion testing did the Veteran experienced any limitation of motion specifically attributable to the pain, the examinations are deemed non-compliant with the requirements of Sharp and Mitchell. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (citing Jones v. Shinseki, 23 Vet. App. 382 (2010)); Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Therefore, an additional and comprehensive re-examination is warranted. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) before May 20, 2014, is remanded. A TDIU was remanded in December 2020 for the Director of the Compensation Service to consider on an extraschedular basis. While an opinion was received in January 2021, the Board cannot adjudicate the claim since it is deemed inextricably intertwined with the increased rating claims being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding treatment records. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected cervical and lumbar spine disorders. The entire claims file and a copy of this remand must be made available to the clinician to review. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. If the clinician 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 the basis for this decision. The clinician should indicate whether the range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). If the clinician is unable to provide such an opinion without resort to speculation, the clinician 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 clinician is advised that it is not adequate to state that an opinion regarding flare-ups may not be provided solely because the examination is not being conducted during a flare-up. 3. Review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.