Citation Nr: 20022499 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-34 019A DATE: April 1, 2020 REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from February 1990 to May 1992. This case comes before the Board of Veterans Appeals (Board) from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine is remanded. VA has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A (2012). This includes the duty to make “reasonable efforts to obtain relevant records (including private records)” as long as the claimant “adequately identifies” those records and authorizes VA to obtain them. 38 U.S.C. § 5103A(b)(1). In this regard, if a claimant identifies a source of potentially relevant treatment records, and the claims file contains only some treatment records from that source, VA must ensure that the claims file contains complete records from the identified source (i.e., covering all periods of treatment identified by the claimant). This includes those situations where VA previously requested and obtained treatment records from a particular source and then the claimant subsequently re-identifies that source as having additional, potentially relevant treatment records; the prior efforts do not relieve VA of its duty to obtain additional records. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009) (“VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate.”) A remand is required to obtain VA medical records. Specifically, in his January 2017 Notice of Disagreement (NOD) the Veteran reported a doctor visit on January 19, 2017 at the VA Outpatient Clinic in Toledo during which the doctor reviewed his VA letter and stated he should be rated at 20 percent. Therefore, the Veteran requested that VA obtain all records from the Toledo VA Outpatient Clinic, as well as the VA Hospital in Ann Arbor, Michigan. Additionally, in his July 2018 Form 9, the Veteran reported an upcoming appointment for an epidural and stated there were new records from Ann Arbor. While the Board notes the presence of Ann Arbor records dated most recently in June 2018, the records identified by the Veteran, to include his January 2017 appointment in Toledo and August 2018 epidural appointment, have not been associated with the file. It thus appears that there are outstanding VA treatment records. These must be obtained on remand. Second, remand is required for a medical opinion. The Veteran has asserted his back has gotten worse. However, the last Compensation and Pension (C&P) Examination evaluating his back condition is from December 2016. Additionally, in the Veteran’s representative alleged the December 2016 C&P examiner failed to document actual functional loss experienced by the Veteran and only listed a “painful back.” He also claims the examiner failed to ask appropriate questions in order for the Veteran to describe how his pain actually affects his daily activities of life and work during flare-ups. As this was over three years ago, and the Veteran continues to allege worsening since this examination as well as concerns over the prior examination, a new examination to determine the current severity of his back condition is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any records from the VA Medical Center (VAMC) in Ann Arbor, Michigan, dated from October 2018 to the present, and all records from the Toledo VA Outpatient Clinic that are not currently of record. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA spine examination to assist in determining the current severity of the service-connected lumbar spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. Range of motion measurements must be included in both active andpassive motion in weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should clearly be noted. The examiner must also asses the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran and as gleaned from the Veteran’s medical record in the claims file. If it is not possible to provide any of the requested information, the examiner must explain why this is so. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale indicating that the Veteran is not having a flare-up at the time of the examination, without more explanation, will not be deemed adequate. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Stuedemann, 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.