Citation Nr: 22018302 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 10-13 925 DATE: March 28, 2022 REMANDED The issue of entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to December 12, 2020, and in excess of 20 percent disabling for the period thereafter, for service-connected lumbar strain with degenerative disc disease (DDD), arthritis, and stenosis, 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 from November 1992 to March 1993. The Board remanded the appeal in October 2013 to schedule the Veteran for a hearing. In March 2014, the Veteran testified at a videoconference hearing before a different Veterans Law Judge. A transcript of the hearing is of record. The Board then remanded the case for further development in May 2014 and July 2017. In a May 2018 decision, the Board denied the above issues. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties and remanded the issues to the Board. In August 2019, the Veteran testified at a second videoconference hearing before a different Veterans Law Judge. A transcript of the hearing is of record. In May 2020, the issues on appeal were remanded. Following the remand, the Veteran's representative requested another hearing. See Correspondence, January 2021. In February 2022, the Veteran testified at a third hearing before the third undersigned Veterans Law Judge. At the February 2022 Board hearing, the option for a third hearing was discussed and the Veteran waived a third hearing. However, upon further review of the record, the February 2022 hearing constitutes the Veteran's third hearing. In August 2020, the Veteran's representative submitted a request for a DRO hearing in response to the May 2020 Board remand. The status of this request is unclear to the Board. Nevertheless, as the Veteran and his representative participated in a Board hearing in February 2022, the Board finds that there is no prejudice to the Veteran in proceeding with the below development. Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012). In December 2020, the evaluation for the issue on appeal was increased from 10 percent disabling to 20 percent disabling, effective December 12, 2020. The increase is reflected in the issues on appeal. 1. Entitlement to an increased evaluation for service-connected lumbar strain with DDD, arthritis, and stenosis. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. Specifically, the Board finds that a new VA examination is needed. The Board acknowledges the December 2020 VA examination report and accompanying opinion, but finds clarification is needed of the following. First, the VA examination report notes that passive range of motion for the back "[c]annot be performed or is not medically appropriate." The same response is provided regarding objective evidence of pain in passive range of motion. However, the accompanying VA opinion states that the Veteran's "passive range of motion with [sic] consistent with active range of motion without increase or decrease in degrees." The Board seeks clarification as to whether passive range of motion testing can be performed and, if so, the results of such testing. The Board notes other seeming discrepancies between the December 2020 VA examination report and opinion. For example, the VA examination report for initial range of motion testing does not note a range of motion that exhibits pain (i.e. in forward flexion, extension, right and left lateral flexion, and right and left lateral rotation). However, the accompanying VA opinion states that "[d]uring physical exam, veteran had moderate midline lumbar region pain during range of motion. He had a decrease in left lateral flexion with pain, incoordination and fatigue which contributed to additional loss of range of motion on left lateral flexion." The Board also does not see incoordination or fatigue indicated in the VA examination report. The Board seeks clarification upon remand. In addition, the Board notes that at the February 2022 hearing the Veteran's representative raised concerns regarding the evaluation of the Veteran's flare-ups. The Board asks that a new examination consider the Veteran's contentions regarding the severity, frequency, and duration of his flare-ups. The Board notes that the Court has held that examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. (emphasis added) Thus, the Board finds a new examination is needed. 2. Entitlement to a TDIU. The issue of entitlement to a TDIU is inextricably intertwined with the other issue on appeal. Therefore, remand of the issue of entitlement to a TDIU is appropriate. The appeal is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his lumbar spine disability. The claim folder, including a copy of this remand, and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. 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 is asked specifically to provide range of motion (ROM) testing for active motion, passive motion, weight-bearing, and nonweight-bearing. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. The examiner should state whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and whether there is any form of ankylosis or functional ankylosis. He or she should also state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including any additional limitation of motion) due to these factors. Finally, the examiner is asked to address the impact of the Veteran's service-connected disability on his employability. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.