Citation Nr: 22018450 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-09 407 DATE: March 29, 2022 REMANDED Entitlement to a rating in excess of 10 percent for service-connected lumbar spine degenerative arthritis ("back disability") is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Navy from October 1995 to July 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from the January 2017 and February 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Board remanded these issues for additional development. However, the Board regrettably finds that another remand is necessary, prior to readjudication of the claims. As an initial matter, the Board notes that during the rating period on appeal, specifically in a January 2022 rating decision, the Veteran was granted TDIU effective March 3, 2019. As this grant does not encompass the entire rating period on appeal, and thus, is not a full grant of benefits, the Board notes that entitlement to TDIU is still before the Board for adjudication. 1. Entitlement to a rating in excess of 10 percent for service-connected back disability is remanded. As noted above, the Board remanded the Veteran's claim for an increased evaluation in October 2021 due to the inadequacy of the January 2019 VA examination that failed to comply with the requirements of Sharp v. Shulkin, 29Vet. App.26 (2017). Therefore, the Board requested that a new VA examination be provided to the Veteran to ascertain the severity of his back disability, partially by estimating the functional loss that would occur during flare-ups. In November 2021, the Veteran underwent a new VA back examination to assess the current severity of his back disability in response to the Board's October 2021 remand. However, upon review, the Board finds this examination to be inadequate, as it also fails to comply with the requirements set forth in Sharp. The Board reiterates that Sharp requires, when a Veteran complains of flare-ups, the examiner must "state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment." 29 Vet. App. at 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Furthermore, in situations where an examination is not conducted during a flare-up, a VA examiner should estimate functional loss based on the Veteran's descriptions of his/her additional loss of function during flare-ups, gleaned from his/her medical records, or discerned from other sources available to the examiner. Id. at 35-36. Within the examination report, the Veteran reported experiencing flare-ups of the back, however, this examination was not conducted during a flare-up and the examiner failed to ascertain the required information as to the functional loss in terms of range of motion regarding the Veteran's flare-ups by alternative means, nor did the examiner provide an adequate rationale as to why this information cannot be ascertained beyond mere speculation and/or by additional means. While the Board acknowledges the examiner's rationale that due to the initial range of motion testing during this examination not being completed based on contraindication, and therefore, additional loss cannot be estimated, the Board does not find this rationale to be adequate, as the severity of the Veteran's additional loss of range of motion, as directed by Sharp, is not solely based on the current examination at hand, but yet, is to be determined by the entirety of the record (which the Board notes that a previous examination has range of motion testing, with the examiner specifically noting that based on the Veteran's interview, presentation on the exam, and records reviewed, there is a decrease of range of motion). With this being said, the Board finds that the examiner was more than able to ascertain and estimate the Veteran's noted range of motion decrease by alternative means. Therefore, the Board finds that an addendum VA medical opinion is needed that adequately reflects the Veteran's additional and/or increased back symptoms and limitations in November 2021, pursuant to Sharp and in compliance with Stegall. While on remand, the RO should obtain all updated medical records pertinent to the claims. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board notes that as development of the Veteran's disability claim before the Board may have an impact on the Veteran's TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his back disability and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the November 2021 VA examiner to provide an addendum medical opinion regarding the current severity of the Veteran's back disability during November 2021. If the November 2021 VA examiner is not available, forward the claims file to another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Identify any symptoms and functional impairments due to the Veteran's back, and report or estimate functional loss in terms of the degree of additional loss of range of motion during November 2021. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. Please note: the examiner should ascertain the required information as to the functional loss in terms of range of motion by alternative means (gleaned from the Veteran's medical records or discerned from other sources available to the examiner). The examiner must provide a complete rationale for any opinion given. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.