Citation Nr: 22018147
Decision Date: 03/28/22	Archive Date: 03/28/22

DOCKET NO. 15-31 230A
DATE: March 28, 2022

REMANDED

A rating in excess of 20 percent for a lumbar spine disability is remanded.

A total disability rating based upon individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served in the United States Air Force from September 1974 to September 1979 and from February 1982 to December 1995.

1. A rating in excess of 20 percent for a lumbar spine disability is remanded.

2. A TDIU is remanded.

As per the December 2021 Joint Motion for Partial Remand, a new VA examination is necessary in order to comply with Sharp v. Shulkin, 29 Vet. App.  26, 33-35 (2017). The claim for a TDIU is intertwined with the resolution of this claim and therefore must also be remanded.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected lumbar 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.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  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).

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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.  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 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).

 

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Kim, 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.