Citation Nr: 18160253
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 17-48 178
DATE:	December 27, 2018
REMANDED
Entitlement to a rating higher than 20 percent for a lumbar spine disability is remanded.
REASONS FOR REMAND
The Veteran, who is the appellant, served on active duty from September 1981 to April 1982, June 1984 to January 2001, and February 2002 to February 2006.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 
1.  Low Back Pain with Degenerative Disc Disease Lumbar Spine is remanded.
After the issuance of the last supplemental statement of the case dated March 13, 2018, additional and relevant VA-generated medical evidence has been added to the claims file, without a waiver of initial RO consideration.
Additionally, VA treatment notes uploaded in November 2018 show that the Veteran went to a VA urgent care clinic due to an exacerbation of low back pain with pain radiating to the legs on March 21, 2018.  As there is evidence suggesting a worsening of disability, a new examination is warranted.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
Of note, the Veteran’s representative in August 2018 argument, states that the December 2017 VA examination report is incomplete because the examiner did not answer the question as to whether there are any Incapacitating Episodes.  The Board notes however that the examiner indicated that IVDS was not shown; therefore in that instance, incapacitating episodes need not be addressed.
The matter is REMANDED for the following action:
1. Ensure that all outstanding relevant VA treatment records are associated with the claims file.
2. Then, provide the Veteran with a VA examination to ascertain the severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner.  All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail.
After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following:
(a) Elicit from the Veteran all signs and symptoms of his thoracolumbar spine disability.  Indicate any and all associated orthopedic and neurologic manifestations.
**In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups.
(b) Full range of motion testing must be performed where possible.  The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).
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. 
(c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning.
(d) Indicate the severity of any associated neurological impairment, to include radiculopathy.  
A complete rationale should be provided.
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3.  Then, readjudicate the claim issue on appeal, with consideration of all evidence, to include those records added after the last SSOC.  In doing so, attention is called to April 2018 VA neurology examination.
 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Ross, Law Clerk