Citation Nr: 18132375
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-22 119
DATE:	 
REMANDED
Entitlement to disability rating in excess of 20 percent for lumbosacral strain from August 25, 2009 is remanded.
Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1989 to June 1992.
These matters come before the Board on appeal of a June 2012 rating decision.  In April 2014, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  This matter was previously before the Board in September 2017, when the issues currently before the Board were denied.  The Veteran appealed the denials of the issues on appeal to the United States Court of Appeals for Veterans Claims (Court).  In May 2018, the Court issued an Order granting a Joint Motion for Remand (Joint Motion), vacating the September 2017 denials of the issues on appeal, and returning the matters to the Board.  The matters now return to the Board for appellate consideration.  
1. Entitlement to disability rating in excess of 20 percent for a lumbosacral strain from August 25, 2009 is remanded.
In the May 2018 Joint Motion, the Court noted that a remand is required for addendum medical examination findings.  Specifically, the Court found that the November 2015 VA examination was inadequate because the examiner noted that pain limited the Veteran’s functional ability during repeated use over time as well as during flare-ups, but failed to estimate the degree of functional loss, and indicated that such an estimate could not be determined.  Pursuant to the holding in Sharp v. Shulkin, 29 Vet. App. 26, 35-36(2017), the examiner must provide an explanation regarding why he cannot obtain information from the Veteran regarding the severity, frequency, duration, or functional loss from flare-ups and repetitive use over time, or attempt to glean such information from the other medical evidence of record.  The Court noted that the examiner did not provide any of the above explanations.  The Court further noted that the examiner did not provide information as to where pain began on range of motion and whether it lead to additional functional loss.  As such, in order to comply with the May 2018 Joint Motion, remand is necessary to obtain addendum medical examination findings.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance).]
2. Entitlement to a TDIU is remanded.
The May 2018 Joint Motion indicated that the issue of entitlement to a TDIU should be remanded as it is inextricably intertwined with the claim for entitlement to an increased disability rating for the Veteran’s lumbar spine condition from August 25, 2009.  As such, the TDIU adjudication should be deferred until development is complete with regard to the Veteran’s lumbar spine increased rating claim.
 
The matters are REMANDED for the following action:
1. Schedule the Veteran for a medical examination to obtain addendum medical examination findings as to the nature and severity of the service-connected lumbosacral strain.  
All indicated tests must be performed, and findings reported, including range of motion in degrees on active and passive motion, and on weight-bearing and nonweight-bearing.  The examiner must also provide information as to where pain begins on range of motion testing.
Upon review of the record, the examiner must provide an opinion as to whether pain, weakness, fatigability or incoordination, associated with the Veteran’s back disability, could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain, weakness, fatigability or incoordination on repeated use or during flare-ups.  If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so, to include eliciting information from the record and/or the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups.  Additionally, any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.  
A complete rationale for the opinions expressed must be provided. 
2. After the development requested is completed, readjudicate the claims on appeal, to include entitlement to a TDIU.  If any benefit sought remains denied, then furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board.
 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Baker, Associate Counsel
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