Citation Nr: 18160520
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 10-17 512
DATE:	December 28, 2018
REMANDED
The claim of entitlement to a rating in excess 20 percent prior to December 2, 2016, and in excess of 40 percent from December 2, 2016, for a lumbar spine disability is remanded.
The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
REASONS FOR REMAND
The Veteran had active military service in the Air Force from July 1985 to February 1993, June 1996 to March 1997, March 2003 to February 2004, February 2005 to November 2005, April 2006 to May 2007, and June 2007 to July 2008.
In April 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  During the hearing, the Veteran submitted additional evidence with a waiver of RO review.
During the Veteran’s April 2011 Board hearing, he raised the issue of entitlement to service connection for hemorrhoids, as secondary to medication taken for his service-connected back disability.  This issue has not been adjudicated by the RO, and it is referred to the RO for appropriate action.
1. Entitlement to a rating in excess 20 percent prior to December 2, 2016, and in excess of 40 percent from December 2, 2016, for a lumbar spine disability is remanded.
The Veteran was afforded VA examinations in June 2009, July 2015, and December 2016 for his back condition.  The Veteran denied experiencing flare-ups at his July 2015 VA examination.  However, on his June 2009 and December 2016 VA examinations, he reported having flare-ups; however, the VA examiners were not able to estimate the limitation of functional ability or impairment caused by the Veteran’s flare-ups without resort to speculation.  
In June 2017, the Board denied the claims for an increased rating for a lumbar spine disability, and entitlement to a TDIU.  
The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court).  In an April 2018 Joint Motion for Remand (JMR), the Court vacated the Board’s June 2017 decision and remanded the issues of an increased rating for a lumbar spine disability and entitlement to a TDIU for action consistent with the terms therein.  
In its April 2018 JMR, the Court found that the Board relied on inadequate medication examinations that did not properly address the impact of the Veteran’s reported flare-ups in its determination that an increased rating for the Veteran’s lumbar spine disability was not warranted.  See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017).  Therefore, a remand is warranted to afford the Veteran a new VA examination to address the Veteran’s functional loss due to flare-ups in accordance with Sharp.    
2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
Additionally, the Veteran’s claim for TDIU should be remanded as well.  The Veteran’s claim for TDIU is inextricably intertwined with his claim for an increased rating for a lumbar spine disability, which is being remanded.  These claims should be considered together.  See Parker v. Brown, 7 Vet. App. 116 (1994).   
The matters are REMANDED for the following action:
1.  Schedule the Veteran for an examination of his back, in order to determine the current level of severity of his back disability. 
a) The examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable).  If the examiner is unable to conduct the required testing, or concludes testing is not necessary, he or she should clearly explain why that is so. 
b) The examiner must provide an opinion as to the severity of the Veteran’s back symptoms, and how those symptoms impact the Veteran’s occupational functioning. 
c)  With regard to flare-ups, if the examination does not take place during a flare-up, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups from the Veteran.  
d) The examiner must express an opinion as to whether or not the Veteran’s functional ability is significantly limited during flare-ups, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range-of-motion during flare-ups. 
2.  Retrospective Opinions.
a)  The examiner should review the June 2009 and December 2016 VA back examination reports.  The examiner should request that, as of the time of those examination reports, the Veteran describe to the best of his memory the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups of his back disability. 
b) For both June 2009 and December 2016, the examiner is requested to express an opinion as to whether or not the Veteran’s functional ability was significantly limited during flare-ups of back symptoms, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range-of-motion during flare-ups.  
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3.  A rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
 
T. STEPHEN ECKERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Crawford, Associate Counsel 
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