Citation Nr: 1740469 Decision Date: 09/19/17 Archive Date: 10/02/17 DOCKET NO. 12-18 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 20 percent for lumbar strain (low back disability). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1977 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, in pertinent part, denied entitlement to a rating in excess of 20 percent for a low back disability. The Veteran testified at a June 2017 Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Although the Veteran reported during the June 2017 Board hearing that he had been unemployed for a long time, his representative stated that the Veteran was not seeking a TDIU. The Board therefore finds that Rice is inapplicable, and a TDIU request has not been inferred at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record reflects that the Veteran's most recent VA examination for a low back disability occurred in November 2015. The fact that a VA examination is almost two years old is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). In this case, however, the Veteran indicated during the June 2017 Board hearing that his symptoms have worsened since the November 2015 VA examination. The Veteran's statement is evidence of possible worsening since the last VA examination. Therefore, a new VA examination is needed to assist in determining the current severity of the Veteran's service-connected low back disability. Snuffer, 10 Vet. App. at 400. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's updated VA and private treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability. The examiner is requested to review all pertinent records associated with the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner shall test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, and specifically describe the point at which pain begins during range of motion testing and any additional functional limitations due 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. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. The examiner should also evaluate any associated objective neurologic abnormalities related to or caused by the low back disability. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).