Citation Nr: 20031408 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 17-39 697 DATE: May 5, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for L4 pars spondylolysis with degenerative changes of the lumbar spine (hereinafter lumbar spine disability) is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity is remanded. REASONS FOR REMAND The Veteran had active duty service from April 2013 to November 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the Veteran’s lumbar spine disability and assigned a 10 percent rating and the May 2015 rating decision, which granted service connection for peripheral neuropathy, left lower extremity and peripheral neuropathy, right lower extremity and assigned 10 percent ratings. The Veteran testified at a Board hearing before the undersigned in February 2020; a transcript of that hearing is associated with the claims file. The Veteran contends that he is entitled to initial ratings in excess of 10 percent for his peripheral neuropathy, left lower extremity disability, peripheral neuropathy, right lower extremity disability, and lumbar spine disability. The Veteran was last afforded a VA examination in September 2017. The Veteran testified during the Board hearing that since his last VA examination in 2017 his lumbar spine and associated peripheral neuropathy of the lower extremity disabilities have worsened. As such, a new examination is necessary to address the Veteran’s current nature, extent, and severity of his peripheral neuropathy, left lower extremity and peripheral neuropathy, right lower extremity disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 408 (1997). Additionally, pertinent to the claims on appeal, there appears that there may be outstanding VA treatment records which may contain information pertinent to the Veteran’s claims. The Veteran testified that his service-connected disabilities began to worsen in April 2019 when he suffered a muscle spasm in his right hip. He testified that he was treated for this at a VA hospital. However, the Veteran’s claims file is absent of any April 2019 VA treatment records. Thus, to ensure that there is an adequate record upon which to decide the Veteran’s claims, and because VA is considered to be in constructive possession of VA treatment records, a remand is necessary to obtain all VA treatment records. These records are deemed in the constructive possession of VA and must be obtained prior to any further adjudication. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all outstanding records of treatment of the Veteran by VA, specifically those from VA hospital around April 2019, and associate those records with the claims file. 2. Ensure that the Veteran is scheduled for an appropriate VA examination to determine the current status and extent of the Veteran’s service-connected lumbar spine disability and associated peripheral neuropathy of his lower extremities. The claims file, including a copy of this decision, must be made available and reviewed by the examiner. The examiner should describe the nature and severity of all manifestations of the Veteran’s back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree of flexion and/or extension at which such pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. The examiner must also provide results of examination with regard to the peripheral neuropathy of each lower extremity associated with his lumbar spine disability. Additionally, the examiner must comment on the functional impairment caused by the Veteran’s lumbar spine disability to include the resulting peripheral neuropathy. The examiner should describe what, if any, impact the Veteran’s disability has on her ability to work or perform occupational tasks. The examiner must test the range of motion on active motion and passive motion, as well as in 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 in this case, he or she should clearly explain why that is so. The Veteran has reported that he suffers from flare-ups of his back symptoms. The examiner must comment on additional functional loss during the flare-ups or provide an adequate explanation as to why such comment is not included. If the examiner determines the Veteran is not currently suffering from a flare-up of any conditions, the examiner must also ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flare-ups by alternative means. The examiner must offer an estimate as to additional functional loss during flare-ups regardless of whether the Veteran is undergoing a flare-up at the time. (Continued on the next page)   If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Readjudicate the claims remaining on appeal. If any benefit sought is not granted in full, furnish to the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to respond prior to returning the case to the Board, if otherwise in order. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.