Citation Nr: 20004094 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-36 948 DATE: January 16, 2020 ORDER The issue of entitlement to a rating in excess of 10 percent for lumbar spasms is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1973 to March 1975. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that in his July 2017 VA Form 9 substantive appeal, the Veteran requested Board consideration of his Agent Orange-related claims. An October 2016 rating decision denied the Veteran’s claim for service connection for diabetes mellitus due to Agent Orange exposure. The Veteran was notified of it and advised of his appeal rights at the time. The Veteran did not file a notice of disagreement with that determination, and it is not on appeal. 1. Entitlement to a rating in excess of 10 percent for lumbar spasms. The Veteran has asserted a worsening of his service-connected lumbar spasms since his most recent pertinent VA examination conducted October 2017. The Veteran’s December 2019 Informal Hearing Presentation includes his representative’s statement: “Since the Veteran's last VA examination in October 2017, over two years ago, the Veteran contends that his condition is worse than currently evaluated.” As there is a suggestion of worsening, the Veteran should be scheduled for new compensation examinations to assess current severity of his disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that his disability had increased in severity). The Board notes that a new VA examination is not warranted merely because of the passage of time but should be provided if there is an indication that the Veteran’s disability has worsened since last examined. The duty to assist includes providing the veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). Such indication could come from the Veteran or be shown in his treatment records. Here, the Veteran has asserted that his back-pain has worsened since his most recent VA examination. Further, since the October 2017 examination, the Veteran has been seen by a medical provider numerous times for his back problems. See January 2018, February 2018, April 2018, and May 2018 VA treatment records. While a new examination is not required simply because of the time that has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Informed appellate review of this matter requires medical evidence considering the complete nature of the pertinent impairment. The Board finds that a remand is warranted for a new VA examination of the Veteran’s full breadth of functional impairments associated with the service-connected lumbar spasms. The matters are REMANDED for the following action: 1. Associate with the claims-file all outstanding VA and non-VA clinical records. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of all manifestations of his service-connected lumbar spasms. Please include a description of functional limitations due to the Veteran’s lumbar spasms. The entire record should be reviewed in conjunction with the examination. a. In particular, please test the range and motion of the thoracolumbar spine on: Active motion; Passive motion; Weight-bearing; and Non weight-bearing. b. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups expressed or estimated in terms of additional limitation of motion. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary in this case, her or she should clearly explain why that is so. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.