Citation Nr: 22018080 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-55 062 DATE: March 28, 2022 REMANDED The issue of entitlement to an increased rating greater than 10 percent for a back disability is remanded. The issue of entitlement to compensable rating prior to March 13, 2018, and an increased rating greater than 20 percent thereafter for left lower extremity radiculopathy is remanded. The issue of entitlement to an increased rating greater than 10 percent prior to March 13, 2018, and greater than 20 percent thereafter for right lower extremity radiculopathy is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1974 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2016 by a Department of Veterans Affairs (VA) Regional Office. The Board notes that the Veteran was scheduled for a hearing before the Board in November 2019, but he did not report, request a postponement, or provide good cause for not appearing at the hearing. Accordingly, the appeal will proceed as though the hearing request was withdrawn. See 38 C.F.R. § 20.704(d). Further, the issue of TDIU is raised by statements of record that the Veteran is unable to work due to functional limitations caused by his service-connected back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009); see, e.g., October 2017 VA Form 9; November 2019 Information Hearing Presentation (IHP). For clarity, the issue has been listed separately. The Veteran contends that his back disability results in constant pain that prevents a good quality of life; he reported being unable to lift over 20 pounds, sit, stand, or walk for prolonged periods of time and that the disability has continued to worsen. See August 2017 Notice of Disagreement; October 2017 VA Form 9. In addition, his representative asserts the VA back examinations did not consider all relevant evidence of record, including whether the Veteran's pain medications impacted his ability to perform range of motion testing. See November 2019 IHP. The Board finds remand is warranted to ensure all necessary evidence is of record for rating purposes. See 38 C.F.R. § 4.1; Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Specifically, the Veteran reported flare-ups of back pain but the examination reports obtained in response to this claim were unable to offer an opinion on functional loss during flare-ups without resorting to speculation because the Veteran was not experiencing a flare at the time of the examination. See August 2016 VA examination report, at 3, 5; March 2018 VA examination report, at 3-4. The Court of Appeals for Veterans Claims has held that a VA examination is inadequate if a flare opinion is not offered based on an estimate derived from information procured from relevant sources, including lay statements, unless it is clear that an opinion cannot be provided without resorting to speculation due to a lack of knowledge among the medical community at large. Sharp, 29 Vet. App. at 37. As the August 2016 and March 2018 examiners did not provide opinions on the Veteran's flare-ups in compliance with Sharp, an additional examination is warranted. Regarding the ratings for radiculopathy of the bilateral lower extremities, the Board notes that while the appeal for an increased rating for the back disability was pending, an April 2018 rating decision increased the 10 percent rating for right lower extremity radiculopathy to 20 percent, effective March 13, 2018, and assigned a separate 20 percent rating for left lower extremity radiculopathy, effective March 13, 2018. The Board finds the ratings for radiculopathy are before the Board as they are part of the claim for increase of the back disability. 38 C.F.R. § 4.71a, DCs 5235-42, Note (1); see Chavis v. McDonough, 34 Vet. App. 1 (2021). As the examination of the spine will include an assessment of associated neurological impairments, including bilateral lower extremity radiculopathy, the issues are inextricably intertwined and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). With regard to entitlement to TDIU, the March 2018 VA examiner noted the Veteran would be limited to sedentary type work with limitations on lifting and carrying and no running, jumping, or repeated bending due to his back disability. However, the Veteran's work history is unclear and additional development should be conducted on remand. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for the low back disability, to include bilateral lower extremity radiculopathy, that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Obtain a complete post-service employment and education history of the Veteran. The employment history should indicate the type of position, whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. Any employment accommodations should be described in detail. 3. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his low back disability. The examiner should provide a full description reporting all signs and symptoms necessary for evaluating the Veteran's disability, including whether any medications prescribed for back pain effect range of motion testing. All indicated tests and studies should be conducted, including range of motion studies in both active and passive motion, in weight-bearing and non-weight-bearing. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and/or with repetitive use. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and after repetitive use based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner 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 examiner (does not have the knowledge or training). 4. After completing the directives to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.