Citation Nr: 18123969
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-10 837
DATE:	August 3, 2018
REMANDED
Entitlement to a rating in excess of 20 percent for service-connected lumbar strain is remanded.
Entitlement to a rating in excess of 20 percent for service-connected right ankle strain is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from November 2000 to September 2001.
The issue of entitlement to a TDIU was not certified for appeal.  However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Specifically, in March 2013 the Veteran’s private physician opined that he felt that the Veteran was not capable of performing gainful employment with the symptoms and limitations stemming from his spinal impairment.  As the evidence suggests that the Veteran is unemployable due to symptoms of his service-connected disabilities, the issue of entitlement to a TDIU has been raised.
In his March 2014 substantive appeal, the Veteran indicated that he wanted a Board hearing.  In February 2018 the Veteran withdrew his hearing request.
1. Entitlement to a rating in excess of 20 percent for service-connected lumbar strain and to a rating in excess of 20 percent for service-connected right ankle strain are remanded.
Upon review of the record, the Board finds that the issues must once again be remanded.  The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims.
With regard to the increased rating claims, the Veteran has alleged that he suffers from flare-ups of lumbar spine and right ankle symptoms.  The April 2011 examiner noted these complaints, but failed to provide an estimate of the functional loss during flare-ups based on information in the medical records and elicited from the Veteran.  As such, the claim must be remanded for new VA examinations that adequately addresses the Veteran’s reported flare-ups.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).
Additionally, remand is necessary to obtain updated treatment records and to afford the Veteran a new examination so that the Board can gain a better understanding of the severity of the Veteran’s lumbar spine symptoms.  The evidence indicates that the Veteran’s symptoms have fluctuated during the appellate period.  Specifically, the Veteran’s April 2011 VA examination reflected flexion to 60 degrees, March 2013 private examination reflected flexion to 30 degrees or less, and September 2014 private treatment record reflected possible flexion to 60 degrees.  The Board finds that a more recent examination would allow it to evaluate the severity of the Veteran’s lumbar spine symptoms.  

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
The Board finds that the TDIU issue is not fully developed for appellate review, as the Veteran has not been provided with notice of the laws and regulations governing TDIU.  The matter must be remanded to initiate this due process.  See 38 C.F.R. § 4.16.
Furthermore, with regard to the TDIU claim, it is inextricably intertwined with the Veteran’s increased rating claims.  The Board will defer adjudication of the TDIU claim until the development deemed necessary for the claim has been completed.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998).  
The matters are REMANDED for the following action:
1. Assist the Veteran in associating with the claims folder any relevant outstanding treatment records.
2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU.  This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU.  The letter should also request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU.
3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected lumbar spine disability. 
The claims file should be made available to the examiner for review in connection with the examination. 
The examiner should provide findings as to the range of motion of the lumbar spine, including flexion and extension.  Additionally, the examiner must include range of motion testing in the following areas:
• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.
The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time.  Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.  IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.
The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 
The examiner is asked to estimate what the Veteran’s range of motion was from April 12, 2011 onwards.  The examiner should take into account the following records in consideration of the estimate(s): April 2011 VA examination which reflected flexion to 60 degrees, March 2013 private examination which reflected flexion to 30 degrees or less, and September 2014 private treatment record which reflected possible flexion to 60 degrees.
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 should also comment on the impact of the Veteran’s lumbar spine disability on his ability to work. 
The examiner must provide a complete rationale for all the findings and opinions.
4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected right ankle disability. 
The claims file should be made available to the examiner for review in connection with the examination. 
The examiner should provide findings as to the range of motion of the right ankle, including flexion and extension.  Additionally, the examiner must include range of motion testing in the following areas:
• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.
The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right ankle is used repeatedly over a period of time.  Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.  IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.
The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 
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 should also comment on the impact of the Veteran’s right ankle disability on his ability to work. 
The examiner must provide a complete rationale for all the findings and opinions.
5. After readjudication of the increased-rating claims, and after performing any additional development necessary, adjudicate the issue of TDIU or refer the matter to the Director, Compensation and Pension Service for consideration of an extra-schedular TDIU as appropriate.  

 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Gandhi, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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