Citation Nr: 23014272 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 20-19 080 DATE: March 9, 2023 REMANDED Entitlement to an initial rating in excess of 30 percent for service-connected acquired psychiatric disorder is remanded. Entitlement to an initial compensable rating for service-connected lumbar spine disability prior to September 25, 2018, and in excess of 20 percent thereafter, 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 October 1968 to October 1970, to include service in the Republic of Vietnam. He is in receipt of a Purple Heart with One Oak Leaf Cluster, a Bronze Service Star, and a Combat Infantry Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2019 correspondence, the Veteran's representative raised the issue of entitlement to a TDIU. The Veteran's attorney asserts that the Veteran's lumbar spine disability precludes him from doing anything other than sedentary work and notes that the Veteran has never trained for or practiced, a sedentary profession. In light of the November 2019 correspondence, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). Unfortunately, the Veteran's appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Entitlement to an initial rating in excess of 30 percent for service-connected acquired psychiatric disorder is remanded. The Veteran seeks an increased rating for his service-connected acquired psychiatric disorder. The Veteran last underwent a VA examination in January 2015 for his acquired psychiatric disorder. However, VA treatment records added to the record since that time suggest that the symptomatology associated with this service-connected disability may have worsened in severity. As there is evidence of new or worsening symptoms since the most recent examination, remand is necessary for a new examination. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to an initial compensable rating for service-connected lumbar spine disability prior to September 25, 2018, and in excess of 20 percent thereafter, is remanded. The Veteran seeks an increased rating for his service-connected lumbar spine disability. The Veteran was most recently provided with a lumbar spine examination in September 2018. During the examination, the Veteran reported experiencing flare-ups of his lumbar spine disability. However, the examiner did not attempt to estimate the additional functional or range of motion loss experienced during these flare-ups, stating that to do so would require mere speculation without observing a flare-up of the disability. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). While an examiner may state that an opinion cannot be provided without resorting to speculation, such a determination must still be supported by a reasoned rationale explaining why a determination cannot be made, which is not the case here. Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, the Board finds that a remand is warranted so that a new examination can be provided to determine the current severity of the Veteran's lumbar spine disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds that the issue of TDIU is inextricably intertwined with the claims for increased ratings being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As a final matter, in September 2018, the Veteran submitted a signed VA Form 21-4142 identifying treatment from private providers Dr. L.G. and R.C. In October 2018, the Agency of Original Jurisdiction's (AOJ) private medical records contractor rejected the request to obtain the identified records because of the Veteran's foreign address. It is unclear why this would preclude the AOJ (or its contractor) from attempting to obtain the identified, relevant private treatment records from the clinicians, who practice in Puerto Rico, an unincorporated territory of the U.S. See September 2018 VA Form 21-4142. Therefore, on remand the AOJ should make necessary attempts to obtain the identified, private treatment records. If necessary, the AOJ should ask the Veteran to submit an updated VA Form 21-4142. Accordingly, the matters are REMANDED for the following actions: 1. Contact the Veteran and request that he provide information as to any outstanding private treatment records relevant to his appeal, to include from Dr. L.G. and R.C., as previously identified by the Veteran. After obtaining the necessary authorization from the Veteran, the RO must make reasonable efforts to obtain any identified records. The Veteran must be informed of all efforts undertaken to obtain the records. In the alternative, the Veteran may submit the records himself. 2. Send the Veteran a VCAA notice for TDIU and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Then, schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to fully assess the current severity of his acquired psychiatric disability. The claims file must be made available to the examiner and it should be reviewed in its entirety. A complete history of symptoms must be elicited from the Veteran. The examiner is asked to provide responses with respect to the following: (a) Report the extent and severity of the signs and symptoms of the Veteran's acquired psychiatric disorder, to include adjustment disorder with depressed mood and depression, in accordance with VA rating criteria. In this regard, the examiner must complete the corresponding VA disability benefits questionnaire (DBQ). (b) Specifically, the examiner must provide an opinion as to the Veteran's current level of social and occupational impairment due to his acquired psychiatric disability. In providing this opinion, the examiner should provide concrete examples of functional impairments caused by his disability. 4. The, schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to fully assess the current severity of his lumbar spine disability. The claims file must be made available to the examiner and it should be reviewed in its entirety. A complete history of symptoms must be elicited from the Veteran. The examiner is asked to provide responses with respect to the following: (a) Report the extent of the symptoms of the Veteran's right shoulder disability in accordance with VA rating criteria. (b) Conduct range of motion testing of the right shoulder, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right shoulder. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. (Continued on the next page) Based on the Veteran's lay statements and other evidence contained in the claims file, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must indicate why. It should be noted that VA's Clinicians Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from Veterans. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, s/he should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.