Citation Nr: 20021346 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 09-43 563 DATE: March 25, 2020 REMANDED Entitlement to a higher initial rating for degenerative arthritis of the lumbar spine, rated as 10 percent disabling prior to August 15, 2019 and 40 percent disabling thereafter, is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that granted service connection for a lumbar spine disability. The Veteran, in pertinent part, appealed the initial 10 percent rating assigned for the disability. The Veteran appeared at hearing before the undersigned in December 2015. Subsequent to the December 2015 hearing, the Board remanded the initial rating assigned for the Veteran’s lumbar spine disability on numerous occasions to ensure compliance with VA’s duty to assist. The further development primarily consisted of obtaining an examination report that includes all the range-of-motion testing required by VA regulation and adequately addresses the Veteran’s additional functional impairment during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). In November 2019, the Agency of Original Jurisdiction increased the rating assigned for the Veteran’s service-connected lumbar spine disability to 40 percent, effective August 15, 2019, based on an examination conducted on that date that provided the first adequate assessment of the Veteran’s additional functional impairment during flare-ups; however, the August 2019 VA examination report contains a history section describing symptoms that suggests a worsening of the Veteran’s disability prior to the date of the examination. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). The Board finds a retrospective opinion addressing the approximate date of onset of this increase in disability is necessary to ensure its decision on the Veteran’s appeal is fully informed because the appeal period now spans approximately twelve years and the prior examinations failed to adequately address flare-ups. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008). Additionally, there is inconsistency in the record as to whether the Veteran experiences neurological impairment of the lower extremities as a result of his service-connected lumbar spine disability. The August 2019 VA examiner reported the Veteran does not have neurological impairment of the lower extremities, but an August 2019 imaging study that appears to have been completed in conjunction with the examination clearly indicates the Veteran experiences “occasional radiculopathy.” Thus, an opinion addressing this inconsistency is also necessary. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The matter is REMANDED for the following action: Schedule the Veteran for a new examination to obtain an opinion regarding his appeal of the initial rating assigned for his service-connected lumbar spine disability, to include any associated neurological impairment. The selected examiner must first provide a retrospective opinion addressing the approximate date of onset of the functional impairment of the lumbar spine, to include during flare-ups, first adequately reported during the August 2019 VA examination, to the extent possible based on the evidence of record. The examiner must also address whether the Veteran at least as likely as not (50 percent probability or greater) has neurological impairment of the lower extremities associated with his service-connected lumbar spine disability. If the examiner determines the Veteran does not have neurological impairment of the lower extremities, he or she must specifically address the notation of “occasional radiculopathy” in the imaging study completed in conjunction with the Veteran’s August 2019 VA examination and explain whether this assessment was in error or whether the radiculopathy has since resolved. If it is determined the Veteran’s radiculopathy has since resolved, the examiner must discuss the approximate date of onset and resolution with an assessment of the severity during this period. If it is determined the Veteran currently experiences neurological impairment of the lower extremities, the examiner must address the approximate date of onset, as well as provide an assessment of the severity since the date of onset. (Continued on the next page)   The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examiner’s report must include a complete rationale for the opinions provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.