Citation Nr: 18146734
Decision Date: 11/01/18	Archive Date: 10/31/18

DOCKET NO. 14-35 343A
DATE:	November 1, 2018
REMANDED
Entitlement to an initial compensable rating prior to August 7, 2014, and in excess of 40 percent thereafter for lumbar spine degenerative arthritis, postoperative (low back disability) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from November 1989 to August 2010.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO granted service connection for a low back disability and assigned a noncompensable rating, effective September 1, 2010, which was the day following the Veteran’s discharge from military service.
In September 2014, the RO increased the assigned rating for a low back disability to 40 percent, effective August 7, 2014.  The Veteran has not expressed satisfaction with the increased disability rating; this issue thus remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated).

Entitlement to an initial compensable rating prior to August 7, 2014, and in excess of 40 percent thereafter for low back disability is remanded.
The Veteran claims that his current noncompensable and 40 percent ratings do not fully contemplate the severity of his service-connected low back disability. 
In August 2014, the Veteran was last afforded a VA examination.  Notably, the examination did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  Specifically, the examination did not contain passive range of motion measurements or pain on weight-bearing testing.
Moreover, since the August 2014 VA examination, the evidence suggests that the Veteran’s low back disability may have worsened.  For example, an October 2014 operative report reflects that the Veteran was diagnosed with a post L5-S1 laminectomy syndrome and stenosis.  Moreover, a January 2017 private operative report shows that the Veteran underwent spinal cord stimulator and that the post-operative diagnosis was a failed back syndrome.  In a September 2017 statement, the Veteran reported that his back continues to deteriorate and that he is currently sleeping in a hospital bed in his basement. 
Accordingly, a remand is necessary to afford the Veteran an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected low back disability.  

The matter is REMANDED for the following action:
Schedule the Veteran for a new VA examination as to the severity of his service-connected low back disability.  All necessary tests should be conducted.  The claims file must be sent to the examiner for review.
The examiner should examine the Veteran and render findings in accordance with the currently applicable disability benefits questionnaire.  All opinions must be supported by a detailed rationale.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Castillo, Associate Counsel