Citation Nr: 22015622 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 15-01 861 DATE: March 18, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent from September 27, 2018, for a back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2007 to April 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that these matters were previously remanded in February 2021 for further development to afford the Veteran another examination because the December 2020 VA examiner failed to indicate at which point the pain in the Veteran's back began. In October 2021 correspondence, the Veteran's attorney requested 90 days from the date of the Board's September 2021 letter informing the Veteran that his appeal had been returned to the Board's docket. The Board notes that more than 90 days have expired without additional argument, evidence or an additional request for an extension of time from the Veteran or his attorney. Therefore, the Board will proceed to adjudicate the matters on appeal. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.902(c). 1. Entitlement to a disability rating in excess of 20 percent from September 27, 2018, for a back disability is remanded. The Veteran asserts that he is entitled to a rating in excess of 20 percent for his back disability. The Veteran stated that the impairment of his ability to perform activities of daily living is more severe than reflected in his loss of motion. The Veteran contends that his condition has worsened and has brought on a lot of pain. See Notice of Disagreement Received October 2019. This issue was recently before the Board in April 2019 and again in February 2021. Both times, the Board remanded the issue so that the Veteran could be afforded an updated VA examination. Each time, the Board directed that if pain on motion was observed, the examiner should indicate the point at which pain begins. The Veteran was most recently afforded a VA examination to assess the severity of his back disability in January 2021. The examiner noted that the Veteran experienced pain on motion, but the examiner failed to specify the point at which pain began. Moreover, although the Veteran was not examined during a period where flare ups were present, the examiner was still required to consider the Veteran's statements regarding the impact of pain on functional loss and provide an estimated loss of range of motion in terms of degrees. The examiner failed to provide this information. Accordingly, remand is required to obtain an adequate medical opinion that complies with the Board remand directives and allows the Board to make an informed decision on the matter. Stegall v. West,11 Vet. App. 268, 271(1998) 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends that he is not able to work due to limitations caused by his service-connected disabilities. In light of the above determination, the Board finds it must also remand the Veteran's claim for TDIU as inextricably intertwined with the issue of an increased rating for the Veteran's back disability. As the issue of TDIU is part and parcel of the increased rating claim concerning the Veteran's back disability, the Board is not able to consider the issue of TDIU at this time. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain on motion is observed, the examiner should indicate the point at which pain begins. If the examiner is unable to state the exact point at which pain begins, the examiner should provide an estimate of range of motion in terms of degrees with consideration to the Veteran's lay statements and descriptions of pain and limitations. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. If the Veteran does not experience flare-ups at the time of the examination, the examiner should provide an estimate in terms of range of motion measurements in degrees and estimate how flare ups would impact his range of motion measurements with consideration to the Veteran's lay statements and descriptions regarding flare-ups and the limitations he experiences during times that they do occur. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, Associate 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.