Citation Nr: 18141948 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 16-14 560 DATE: October 15, 2018 REMANDED Entitlement to an increased rating in excess of 10 percent for lumbar traumatic arthritis is remanded for additional development. Entitlement to an increased rating in excess of 10 percent for hiatal hernia is remanded for additional development. REASONS FOR REMAND The Veteran had active service with the U.S. Air Force from July 1987 to September 1996. During this time, he was awarded the National Defense Service Medal, the Air Force Longevity Service Award, and the Air Force Overseas Long Tour Ribbon. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Waco, Texas. In April 2018, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans’ Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. Entitlement to increased ratings in excess of 10 percent each for lumbar traumatic arthritis and hiatal hernia are remanded. While the Board sincerely regrets the delay, a remand is required before making a determination on the merits of the claims on appeal. Specifically, the Board finds that new VA examinations are warranted to assess the current nature and severity of the Veteran’s service-connected lumbar traumatic arthritis and hiatal hernia. In this regard, the Veteran was last provided VA examinations addressing these disabilities in October 2013. See October 2013 VA Back Conditions Disability Benefits Questionnaire (DBQ); October 2013 VA Esophaegal Conditions DBQ. However, with respect to both disabilities, the Veteran has submitted medical evidence as well as presented testimony that they have worsened since the prior examinations. See, e.g., September 2017 2017 Odessa VA Medical Center (VAMC) Final MRI Report (reflecting moderate facet arthrosis at L4-5 and evidence of left lateral L4 nerve root impingement, as well as possible right nerve impingement); April 2018 Board Hearing Transcript (recording that the Veteran asserted that he suffers unpredictable flare-ups of back pain lasting multiple days that severely limit his range of motion and interfere with personal functions; also indicating that the Veteran reported waking up in the middle of the night choking and unable to breathe due to “an acid ball” in his throat, and that he has developed a persistent cough due to his repeated choking on acid). Accordingly, given the evidence that the Veteran’s current disability picture has possibly changed, and considering that his last VA examinations concerning these conditions occurred over four years ago, the Board finds that the most recent VA examinations do not adequately reveal the present state of the Veteran’s service-connected lumbar arthritis or hiatal hernia. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board finds, therefore, that contemporaneous examinations are required to ascertain the current severity of the Veteran’s service-connected lumbar arthritis and hiatal hernia. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Obtain any additional outstanding VA treatment records for the Veteran and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. After any available records are associated with the claims file, the AOJ must schedule the Veteran for a VA examination in the appropriate specialties to determine the current severity of the Veteran’s service-connected lumbar arthritis and hiatal hernia. 3. The electronic claims file, including a copy of this remand, must be made available for the examiner to review. The examination report must include a notation that this record review took place. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. The examination should include any diagnostic testing or evaluation deemed necessary for each specific claimed disability. With respect to Veteran’s back examination, the examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should 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 symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and any additional relevant evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion of the Veteran’s back (i.e., the extent of the Veteran’s pain-free motion). If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims for increased ratings. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (“SSOC”) and allow the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel