Citation Nr: 21061969
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 17-18 004
DATE: October 6, 2021

REMANDED

The issue of entitlement to an initial rating greater than 20 percent for a lower back disorder is remanded.

REASONS FOR REMAND

The Veteran had active service from June 1974 to June 1977 and from November 2003 to March 2005.

The Board of Veterans' Appeals (Board) has determined that additional development is necessary and the matter is REMANDED for the following:

1. BACKGROUND FOR THE RO ADJUDICATOR:

The Veteran contends his lower back disorder has worsened since his last VA lower back examination in September 2009. Remand is necessary for an additional VA examination.

2. REMAND DIRECTIVES:

Schedule the Veteran for a VA examination to determine the current severity of his lower back disorder.

The examiner must record the results of ROM testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If this testing cannot be done, the examiner should clearly explain why. The examiner should also note any functional limitation due to pain, weakness, fatigue, incoordination, or other factors.

REGARDLESS OF WHETHER THE VETERAN IS CURRENTLY EXPERIENCING A FLARE-UP OR IS EXAMINED IMMEDIATELY AFTER REPEATED USE OVER TIME, the examiner must give an opinion on the Veteran's functional loss during flare-ups or with repeated use over time. To the extent possible, the examiner should describe the Veteran's functional loss in degrees of additional ROM loss.

The examiner MUST ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare-ups and after repeated use over time. 

The examiner's attention is drawn to the following:

*During a July 2021 hearing, the Veteran reported having a backache every day and occasionally having shooting pain from his low back into his right knee. He reported flare-ups of back pain after cutting grass and when rising from a seated position. The Veteran reported that he lies on the floor to ease back pain during flare-ups.

The examiner must give a thorough explanation for their opinion. IF THE EXAMINER CANNOT PROVIDE AN OPINION WITHOUT RESORTING TO SPECULATION, THEY MUST EXPLAIN WHETHER THIS IS DUE TO THE EXAMINER'S PERSONAL LACK OF MEDICAL KNOWLEDGE OR A LACK OF KNOWLEDGE AMONG THE MEDICAL COMMUNITY AS A WHOLE.

3. If the RO continues to deny the claims, it should issue a Supplemental Statement of the Case (SSOC) and give the Veteran and his representative a reasonable opportunity to respond to the SSOC before returning the appeal to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.§§ 5109B, 7112.

 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Hiaasen

The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.