Citation Nr: 22012608 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 07-34 618 DATE: March 4, 2022 REMANDED Entitlement to an evaluation in excess of 40 percent for service-connected lumbar strain and spondylosis is remanded. Entitlement to an evaluation in excess of 30 percent for service-connected cervical spondylosis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to December 1991. The appeal arises from a denial of the issues in a March 2011 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office (RO). The Board of Veterans' Appeals (Board) denied the claims in December 2020. The Veteran appealed to the Court of Veterans' Claims (CAVC), who granted a September 2021 Joint Motion for Partial Remand (JMRP), and remanded the claims for actions consistent with the JMPR. 1. Entitlement to an evaluation in excess of 40 percent for service-connected lumbar strain and spondylosis is remanded. 2. Entitlement to an evaluation in excess of 30 percent for service-connected cervical spondylosis is remanded. The parties to the September 2021 JMPR agreed that an August 2019 VA examination for the cervical and lumbar spine did not comply with a prior August 2018 Board remand. Specifically, the September 2021 JMPR determined that the August 2019 examiner did not properly address the Veteran's flare-ups by noting that they were "not applicable" without addressing the contrary evidence of record, which is replete with complaints of flare-ups. These include a January 2004 examination reporting flare-ups in both the lumbar and cervical areas of the spine precipitated by walking, going up stairs and resting and several acute flare-ups in the prior year which functionally impaired the Veteran. Similarly, a May 2006 examination report notes the Veteran experienced flare-ups with a severity of 9/10, affecting him on a weekly basis with a duration of 3 to 4 hours; a February 2008 examination notes his report of severe flare-ups occurring weekly and lasting 1 to 2 days; and March 2018 VA examination reports note spinal flare-ups causing functional loss. In accordance with the September 2021 JMPR, these matters must be remanded for an addendum opinion to address the reported flare ups. 38 U.S.C. § 7252(a). See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board or CAVC gives the Veteran a right to compliance with the terms of the remand); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that if VA provides an examination when developing a service-connection claim, the examination must be adequate, or the veteran must be notified as to why one will not or cannot be provided). 3. Entitlement to a TDIU prior to June 1, 2009, is remanded. Regarding the Veteran's claim of entitlement to TDIU, the Board's consideration of this issue depends on the determination of the Veteran's increased ratings for lumbar and cervical spine claims. See Geib v. Shinseki, 733 F.3d 1350, 1354 (2013); (the Board must address combined effects of disabilities when determining entitlement to TDIU). Because these issues are being remanded, they are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); 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 are adjudicated). Accordingly, adjudication of TDIU will be deferred until further development of the inextricably intertwined issues is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional regarding the Veteran's lumbar spine disability. The entire claims file, including a copy of this remand, must be provided to the examiner for review. The examiner MUST address reports of flare-ups by the Veteran, including those identified in the September 2021 JMPR and other reports noted in the record. The need for an additional examination is left to the discretion of the examiner. After reviewing the claims file, the examiner is asked to address the following: (a.) Considering the Veteran's reported symptoms during the January 2004, May 2006, and February 2008 VA examinations, provide an opinion describing the functional impairment of the Veteran's lumbar spine disability due to flare ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. The examiner must consider the Veteran's report of functional impairment, to include during flare ups, as documented in the VA examination reports, as well as any lay statements describing such. (b.) Considering the Veteran's reported symptoms during the January 2004, May 2006, and February 2008 VA examinations, provide an opinion describing the functional impairment of the Veteran's cervical spine disability due to flare ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. The examiner must consider the Veteran's report of functional impairment, to include during flare ups, as documented in the VA examination reports, as well as any lay statements describing such. (c.) In addition, the examiner should address the impact of the cervical and lumbar spine disabilities on the Veteran's daily activities, including his ability to perform work tasks, for the period prior to June 1, 2009. (d.) If the examiner is unable to provide either opinion without resorting to mere 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 (e.g., lack of insufficient information/evidence, the limits of medical knowledge, etc.). 2. The RO must review the addendum report and ensure the above is completed in full. If an opinion is deficient in any manner, take corrective action prior to returning the case to the Board for appellate review. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.