Citation Nr: 22013749 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 15-18 588 DATE: March 10, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent prior to March 16, 2016, and in excess of 40 percent thereafter for chronic lumbar strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2013 by a Department of Veterans Affairs (VA) Regional Office. Following remands in July 2018 and December 2019, the Board denied an increased rating for the Veteran's back disability in a March 2021 decision. Thereafter, the Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court) and, in October 2021, the Court granted a Joint Motion for Remand (JMR) that vacated such decision and remanded the case for further consideration. It now returns to the Board for further appellate review. 1. Entitlement to an initial rating in excess of 20 percent prior to March 16, 2016, and in excess of 40 percent thereafter for chronic lumbar strain. In the March 2021 decision, the Board denied the above captioned claim and relied, in pertinent part, on VA examinations conducted in March 2013, April 2016, and September 2020 in reaching such decision. However, in the October 2021 JMR, the parties found that the March 2013 VA examiner filed to provide testing results for passive or nonweight-bearing motion as required by Correia v. McDonald, 28 Vet. App. 158 (2016), or information regarding functional loss after repeated use over time as required by Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The parties further noted that, in denying a rating in excess of 40 percent from March 16, 2016, for the Veteran's back disability, the October 2021 Board decision noted that "there was no ankylosis of the spine" and "a 40 percent rating is the maximum that may be assigned for limited motion under the rating schedule." However, the parties observed that, at the March 2016 VA examination, the Veteran's extension of the lumbar spine was limited to zero degrees and, at the September 2020 VA examination, the examiner found that the Veteran's range of motion during flare-ups would be limited to 5 degrees for flexion, extension, right and left lateral flexion, and right and left lateral rotation. While the latter examiner found that the Veteran's back disability did not result in ankylosis, no opinion addressing whether such disability results in the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, based on the foregoing, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing the findings from the March 2013 VA examination in light of Correia and Mitchell, and whether the Veteran's back disability results in the functional equivalent of ankylosis. 2. Entitlement to a TDIU. In the October 2021 JMR, the parties directed the Board to consider whether the issue of entitlement to a TDIU had been reasonably raised by the record in light of a November 2013 VA treatment record noting the Veteran's report that he was uncertain whether he can work due to his back problems and had applied for Social Security Administration (SSA) disability benefits. The Board also notes that SSA records indicate that the Veteran is unable to work due to his back disability, and the March 2016 and September 2020 VA examiners noted that such disability impacted his ability to work. Therefore, the Board finds that a claim for TDIU has been raised in connection with the Veteran's claim for a higher initial rating for his back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, on remand, the Veteran should be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Thereafter, the AOJ should conduct any necessary development and adjudicate such claim in the first instance. The matters are REMANDED for the following action: 1. The Veteran should be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Thereafter, the AOJ should conduct any necessary development and adjudicate such claim in the first instance. 2. Forward the record, to include a copy of this Remand, to an appropriate clinician to obtain an addendum opinion addressing the findings from the March 2013 VA examination and whether the Veteran's back disability results in the functional equivalent of ankylosis. Specifically, the clinician should address the following inquiries: (A) Review the March 2013 VA examination pertaining to the range of motion findings for the Veteran's back disability, and address the below matters: (i) Identify the range of motion findings for pain on passive motion and nonweight-bearing motion expressed, if possible, in terms of degrees. (ii) Offer an opinion as whether, and to what extent, the Veteran's range of motion is additionally limited following repeated use over time, expressed, if possible, in terms of degrees. (B) The examiner should offer an opinion as to whether the Veteran's back disability results in the functional equivalent of ankylosis and, if so, the date such manifested. In offering such opinion, he or she should consider (i) the March 2016 VA examination showing that the Veteran's extension of the lumbar spine was limited to zero degrees and (ii) the September 2020 VA examination showing that the Veteran's range of motion in all planes during flare-ups would be limited to 5 degrees. A rationale for any opinion offered should be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he or she must make clear that he or she has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to speculation. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.