Citation Nr: 20003285 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-28 460 DATE: January 14, 2020 REMANDED Entitlement to a disability rating in excess of 40 percent for service-connected spondylolysis L4 with spondylolisthesis L4-5 and disc bulge L4-5 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1976 to May 1978, from May 1978 to June 1982, and from November 1988 to February 1992. He served in the United States Army. In October 2019, the Veteran appeared at a Board hearing and testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. 1. Entitlement to a disability rating in excess of 40 percent for service-connected spondylolysis L4 with spondylolisthesis L4-5 and disc bulge L4-5 is remanded. Remand is required to obtain a current VA examination. When a claimant asserts, or the evidence indicates, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The most recent VA examination was conducted in June 2015. During the examination, the Veteran was noted to have diagnoses of 1) lumbosacral strain, and 2) lumbar spondylolisthesis L4-5. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy, but experienced numbness and tingling dysesthesias in the knees down consistent with peripheral neuropathy. The examiner concluded that the peripheral neuropathy of the lower legs was not at least as likely as not due to the lumbar spine because the lumbar spine had an L4-L5 spondylolisthesis and that would correlate with upper leg pain, not lower leg pain. At the October 2019 Board hearing, the Veteran testified his service-connected back disorder had worsened since the June 2015 VA examination. The Veteran reported that he is scheduled for a spinal fusion surgery on January 30th, 2020. Because the Veteran has asserted that his service-connected condition has worsened since the June 2015 VA examination, including the need for a spinal fusion surgery, a new examination is warranted. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Specifically, the RO must ensure that all medical records relating to the Veteran’s currently scheduled January 30, 2020 surgery be obtained and associated with the Veteran’s claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for appropriate VA examination to assess the severity of the service-connected spondylolysis L4 with spondylolisthesis L4-5 and disc bulge L4-5. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. (a.) The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of motion beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information - i.e. frequency, duration, characteristics, severity, or functional loss - regarding his flares by alternative means. (b.) The examiner must also address all neurological signs and symptoms associated with the Veteran’s service-connected spondylolysis L4 with spondylolisthesis L4-5 and disc bulge L4-5. The examiner must consider and address the Veteran’s reports of a shooting pain down his leg that feels like a spark. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Nguyen, 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.