Citation Nr: 21001474 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-00 596 DATE: January 8, 2021 REMANDED The claim of entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine, also claimed as scoliosis, (hereinafter low back strain), as of November 12, 2014, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from August 1968 to August 1971. Among other commendations, the Veteran was awarded the Vietnam Campaign Medal with 60 Device, Vietnam Service Medal with 3 Bronze Service Stars, and a Bronze Star Medal. This matter is before the Board of Veteran’s Appeals (Board) from the April 2015 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that granted an evaluation of 20 percent as of November 12, 2014, and then denied an increase in excess of 20 percent for the Veteran’s low back strain. The Board notes that a Supplemental Statement of the Case (SSOC) was issued in January 2017 that addressed the Veteran’s low back strain claim for an increased rating in excess of 10 percent disabling from August 26, 1971, to November 12, 2014, and for an increased rating in excess of 20 percent from November 12, 2014, to present. A second SSOC was issued in March 2017 that only addressed the Veteran’s claim for an increased rating for his low back strain in excess of 20 percent from November 12, 2014, to present. The Board finds that the only window of time on appeal before the Board is from the Veteran’s claim submitted November 12, 2014, to present. In correspondence from the Veteran’s representative in November 2018 the Veteran indicated that he wanted to withdraw his appeal for increased rating for low back strain. However, the Informal Hearing Presentation Brief filed by the Veteran’s representative in September 2019 continued to argue for an increased rating. VA sent correspondence to the Veteran on September 8, 2020, to indicate that a withdrawal of his claims would need to be confirmed in writing and if VA did not hear from the Veteran within 30 days the Board would proceed with his appeal. As of the date of this opinion, VA has not received a response from the Veteran and the Board shall proceed on the merits. Entitlement to an evaluation in excess of 20 percent for low back strain from November 12, 2014 The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his low back strain as of November 12, 2014. During the appeal period the Veteran has received two separate windows of a total disability rating for convalescence pursuant to 38 C.F.R. § 4.130 (2019) for his low back strain. The Veteran received a total rating from March 25, 2019, to May 1, 2019, and from May 23, 2019, to October 1, 2019. The Board also notes that the last VA examination for the Veteran’s low back strain was in April 2015 and the Veteran submitted a private Disability Benefits Questionnaire (DBQ) for his back in December 2015. The Board notes that the DBQ did not contain any range of motion (ROM) measurements for the Veteran’s low back strain but did contain indications of painful motion, an abnormal gait, less movement than normal, and interference with siting and standing. The Veteran was noted to have radiculopathy, intervertebral disc syndrome (IVDS), and diagnostic testing that showed arthritis. The Board finds that the December 2015 DBQ is not adequate for VA purposes as it does not provide ROM testing, nor does it provide ROM with a goniometer as indicated in 38 C.F.R. § 4.46 (2019). As for the April 2015 VA examination, VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The Board notes that the Veteran was last afforded a VA examination to assess the severity of his low back strain in April 2015, almost 6 years ago. The VA examination was also prior to the two separate windows of total disability ratings for his low back strain. In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected low back strain. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board also notes that the mere passage of time does not require VA to provide a new medical examination. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). However, in light of the Veteran’s total disability ratings for convalescence and implied worsening of his low back strain, the Board finds that the Veteran should be afforded a new examination to determine the severity of his service-connected low back strain. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for a new VA examination with an appropriate clinician (a telehealth examination is also appropriate), to assess the present nature and severity of his low back strain. A complete copy of the claims file must be made available to the examiner. All necessary tests and studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should consider the following: (a.) Conduct range of motion testing of the Veteran's low back strain, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts, he is unable to perform range of motion testing due to pain. (b.) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination, muscle spasms, localized tenderness, vertebral body fracture with loss of 50 percent or more in height, ankylosis, guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, lordosis, or abnormal kyphosis. If pain on motion is observed, the examiner should indicate the point at which pain begins, where possible. The examiner is also to consider the Veteran’s statements regarding his functional limitations, effects on his daily life, and pain due to his low back strain. (c.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his lumbar spine due to pain or any of the other symptoms during flare ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare ups and his description as to the extent of functional loss during a flare up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). (CONTINUED NEXT PAGE) A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate SSOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.