Citation Nr: 19149986 Decision Date: 06/27/19 Archive Date: 06/26/19 DOCKET NO. 18-37 775 DATE: June 27, 2019 REMANDED An initial compensable rating in excess of 20 percent for service-connected low back disability is remanded. An effective date earlier than February 5, 2016, for the grant of service connection for a lower back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1977 to April 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his July 2018 substantive appeal, the Veteran discussed increasing pain in his left arm and leg and being very depressed due to his service-connected back disability. It is unclear if he is seeking to file separate claims of service connection for these disabilities. VA amended its regulations to require all claims be filed on standard forms prescribed by the Secretary, effective March 24, 2015. See 38 C.F.R. § 20.201; 79 Fed. Reg. 57660 (Sept. 25, 2014). If these are new claims the Veteran wishes to have adjudicated, he MUST submit the claims on the required standard form, VA Form 21-526. 1. An initial compensable rating in excess of 20 percent for service-connected low back disability The Veteran has received two VA examinations for his service-connected lower back condition. Although the Veteran’s VA and private treatment records contain multiple entries of radiculopathy diagnoses and reports of pain radiating down his lower extremities, neither examiner noted that the Veteran had radiculopathy (or other neurologic abnormalities) or provided a rationale for why his past diagnoses were no longer applicable. Furthermore, the April 2018 examiner appeared to dismiss the repeated use over time and flare up sections, generically noting that it was not possible to determine either “without resorting to mere speculation.” In the absence of observing the Veteran during a flare-up or after repeated use over time, the examiner should be sufficiently informed of and convey any additional or increased symptoms, including “frequency, duration, characteristics, severity, or functional loss” through means other than direct observation, such as by asking the Veteran for this information. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). Therefore, the Board has no choice but to remand for a more adequate opinion. 2. An effective date earlier than February 5, 2016, for the grant of service connection for a lower back disability In a June 2016 rating decision, service connection for a low back disability was granted, effective February 5, 2016. The Veteran was notified of this decision in July 2016. Within one year of that decision, the Veteran expressed his disagreement with the rating and the effective date assigned. See November 2016 and June 2017 Notices of Disagreement. Although a May 2018 statement of the case (SOC) addressed the Veteran’s increased rating claim, to date, no SOC has addressed his effective date claim. In such circumstances, the Board is required to remand for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records (and adequately identified private treatment records) for association with the claims file. 2. Then, schedule the Veteran for a VA examination to evaluate the severity of his service-connected lower back disability. The examiner should answer the following questions based on a review of the claims file and interview and examination of the Veteran. All necessary diagnostic testing should be performed. [The examiner should also specifically comment on the February 2017 MRI results provided by the Veteran.] The examiner must describe all impairments of the Veteran’s lower back disability; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. (a.) The examiner must test active and passive range of motion and provide weight-bearing and non-weight-bearing information. If pain is noted, the point in the range of motion at which pain starts MUST be clearly noted. (b.) The examiner must assess the additional functional impairment on repeated use or during flare-ups IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS, using lay observations specifically elicited from the Veteran. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. Under federal law, the Board CANNOT accept a rationale that the Veteran is not having a flare-up at the time of the examination to explain why range of motion values cannot be provided. If the Veteran is not observed on repeated use or during a flare up, please work with the Veteran to estimate his functional loss (to include range of motion limitations) on repeated use or during flare-ups by describing and demonstrating typical symptoms (and measuring these demonstrations with a goniometer). (c.) Note whether the spine is ankylosed, and indicate whether there are any related neurological manifestations and if so, their nature and severity. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay statements regarding the observable symptoms he has experienced, including those associated with flare-ups and leg numbness/radiating pain/buckling. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested 3. Provide the Veteran with a SOC as to the issue of entitlement to an earlier effective date for his service-connected lower back disability. The Veteran must be informed that he must file a timely and adequate substantive appeal to perfect a future appeal of this issue to the Board.. T. MATTA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Arritt, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.