Citation Nr: 21062361 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-61 974 DATE: October 7, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar strain and bilateral facet hypertrophy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 2013 to July 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. By way of background, the Veteran originally returned a VA Form 9 in December 2016, which perfected the appeal but did not indicate whether a hearing was requested. In January 2017, the Board received a communication from the Veteran confirming that, assuming arguendo he ever requested a hearing in the first place, the request should be withdrawn. See Correspondence (rec'd Jan. 16, 2017). In short, the Veteran's claim for an increased rating was remanded on September 17, 2019. At that time, the Veteran's disability on appeal was only assigned an initial 10 percent rating effective July 30, 2015. By virtue of an examination administered in January 2020, the Veteran's initial 10 percent rating was increased to 20 percent, but no higher and no earlier than July 30, 2015. See VA Exam (Jan. 28, 2020) (rec'd Feb. 6, 2020 ); Rating Decision (July 13, 2020). Because higher ratings are available throughout the period on appeal, and while the Veteran is presumed to seek the maximum available benefits, this issue remains on appeal and has been recharacterized as shown on the title page. See AB. v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was subsequently issued a Supplemental Statement of the Case (SSOC) on October 6, 2020. The Board asserts jurisdiction accordingly. 1. Entitlement to a rating in excess of 20 percent for a lumbar strain and bilateral facet hypertrophy is remanded. As a preliminary matter, the Board notes that to the extent that VA medical records postdating July 13, 2020 may exist, these were not available for Board review. See SSOC; VA Treatment Records (rec'd July 13, 2020). The Federal Circuit has held that VA's duty to assist includes the duty to obtain VA medical records, regardless of the relevancy of those records. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). On remand, the agency of original jurisdiction (AOJ) is requested to take reasonable efforts to obtain all VA treatment records and to assist the Veteran in associating any relevant private treatment records with the claims file. If any identified medical records cannot be obtained, documentation memorializing a negative search result must be associated with the file. Ultimately, the Veteran's lumbar spine disorder was examined in January 2020, at which time it appears that the Veteran's forward flexion is limited to 40 degrees, at worst and when fully contemplating range of motion lost due to effects of flare-ups. See VA Exam (Jan. 28, 2020), supra, at Questions Nos. 1b (confirming flare-ups) and 3d (confirming range of motion findings); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). While the Board is remanding so that updated VA medical records can be associated with the claims file, the Board has also identified the Veteran's argument that "[the initial increase] is not an accurate reflection of his disability" and that "frequent exacerbations...require[] him to be laid up for a substantial amount of time before he regains use of his back joints again." See VSO IHP (rec'd Sept. 13, 2021). Whereas the Veteran endorsed flare-ups approximately once or twice weekly at the January 2020 VA examination, see VA Exam (Jan. 28, 2020), supra, at Question No. 1b, the Board interprets the allegation of "frequent" exacerbations as credible evidence to suggest that the Veteran's flare-ups have increased in frequency and/or severity to the point that an updated examination is required to fully assess and adjudicate the Veteran's claim. See Weggerman v. Brown, 5 Vet. App. 281(1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). For the above reasons, the Veteran's claim is remanded for further development. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative, and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. VA medical records as of July 13, 2020 appear to be associated with the claims file, but no subsequent records after that date are of record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for an examination to determine the nature and severity of his service-connected residuals of a lumbar strain. The need for an in-person examination is left to the discretion of the examiner. The record, including a complete copy of this remand, the September 2019 remand, and all previous VA examinations, must be made available for review in connection with the examination, and all indicated tests should be performed. All necessary tests and studies should be conducted. The examiner should take a history from the Veteran as to the progression of his disability. The examiner should test for pain on motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If such testing cannot be completed, the examiner should indicate whey this is so. The examiner should also ask the Veteran to report any range of motion loss during flare-ups or following repeated use. Even if the Veteran is not experiencing a flare-up of the lumbar spine at the time of the examination, or testing is not occurring immediately following repeated use over time, the examiner must elicit relevant information regarding what functional loss exists during a flare up or after repeated use, if any. After discussion with the Veteran, and after review of the Veteran's claims file, the examiner should estimate range of motion loss during a flare-up or after repetitive use, if any. (Continued on the next page) A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.