Citation Nr: 22016998 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-21 675 DATE: March 23, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent prior to June 29, 2020, and in excess of 40 percent thereafter, for a lumbosacral strain with degenerative arthritis and intervertebral disc syndrome from June 29, 2020, is remanded. Entitlement to an initial compensable rating prior to April 1, 2020, and 50 percent thereafter, for migraine and tension headaches, 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 July 1987 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in February 2020. The Board remanded this matter in April 2020 for additional development. The matter is now returned to the Board for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent prior to June 29, 2020, and in excess of 40 percent thereafter, for a lumbosacral strain with degenerative arthritis and intervertebral disc syndrome from June 29, 2020, is remanded. In April 2020, the Board remanded the Veteran's claim, in part, to obtain an examination to determine the current severity of her service-connected spine disability. VA provided the Veteran an examination in June 2020. It is inadequate to adjudicate the Veteran's claim. The Board requested the selected clinician, in part, obtain range of motion measurements for the Veteran's back in active motion, passive motion, and with weight-bearing and non-weight bearing. The examiner reported passive range of motion testing could not be performed or is not medically appropriate; however, the examiner did not provide any additional explanation why passive range of motion measurements could not be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). Further, in Section 3A, Initial Range of Motion, of the June 2020 Back examination, the examiner is to report whether the Veteran's initial range of motion is abnormal or outside of normal range. The examiner is to then report whether the abnormal range of motion contributes to functional loss. If so, the examiner is then to provide an explanation. The June 2020 examiner reported the Veteran's initial range of motion was abnormal or outside of normal range but did not contribute to functional loss. However, under the explanation section, the examiner indicated the Veteran experiences pain on rest and non-movement due to functional loss. The Board is unable to discern whether the Veteran experiences functional loss because the examination is internally inconsistent. An explanation is only required if abnormal range of motion contributes to a functional loss, which the examiner previously reported was not the case for this Veteran. Moreover, the examiner also reported, in Section 2, Medical History, that the Veteran experiences constant, throbbing lower back pain that is worse with prolonged standing, walking, bending, and lifting objects; however, the examiner then reported in Section 3A that the Veteran does not experience pain with weight-bearing. Without further explanation, the Board cannot reconcile how the Veteran experiences pain while walking and standing but does not experience pain on weight bearing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). 2. Entitlement to an initial compensable rating prior to April 1, 2020, and 50 percent thereafter, for migraine and tension headaches, is remanded. VA provided the Veteran an examination in April 2020 to determine the severity of her service-connected headaches. Based upon the examination, the AOJ assigned the Veteran a 50 percent rating, effective April 1, 2020; the highest schedular rating available under diagnostic code 8100. During the examination the Veteran reported she takes sumatriptan for her migraines. In a March 2020 VA medication reconciliation, the Veteran reported she takes sumatriptan, prescribed by a non-VA provider. The March 2020 medication reconciliation pertains to a period where the Veteran is not rated at the highest schedular rating for her headaches. Therefore, there appear to be relevant private treatment records concerning the Veteran's headaches which are not yet associated with the claims file. VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 3. Entitlement to a TDIU is remanded. Entitlement to a TDIU is inextricably intertwined with the other issues being remanded to the AOJ for additional development and is also remanded at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment provider and for any other medical care provider or medical facility which may have records related to the Veteran's headaches/migraines. Make two requests for the authorized records from any medical care provider or facility identified unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The spine involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. 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 she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 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). The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner's report must include a complete rationale for the opinions provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.