Citation Nr: 21069753 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-34 060 DATE: November 19, 2021 REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial rating greater than 10 percent prior to October 6, 2016, and greater than 20 percent thereafter, for a lumbosacral spine disability is remanded. Entitlement to an earlier effective date than October 6, 2016, for a 20 percent rating for a lumbosacral spine disability is remanded. REASONS FOR REMAND The Veteran had active service from November 1986 to September 1992, including in the southwest Asia theater of operations during the Persian Gulf War. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision which granted claims of service connection for a lumbosacral spine disability, assigning a 10 percent rating effective June 28, 2010, and for left ear hearing loss. The Agency of Original Jurisdiction (AOJ) then combined the grant of service connection for left ear hearing loss with the zero percent rating then in effect for service-connected right ear hearing loss and denied an initial compensable rating for service-connected bilateral hearing loss. In an April 2018 rating decision, the AOJ assigned a higher initial 20 percent rating effective October 6, 2016, for the service-connected lumbosacral spine disability. The Veteran then appealed for an earlier effective date than October 6, 2016, for the 20 percent rating for a lumbosacral spine disability. A virtual Board hearing was held in June 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, to include the Veteran's hearing testimony, the Board finds that the issues on appeal should be characterized as stated above. 1. Entitlement to an initial compensable rating for bilateral hearing loss and to an initial rating greater than 10 percent prior to October 6, 2016, and greater than 20 percent thereafter, for a lumbosacral spine disability is remanded. The Veteran essentially contends that his service-connected bilateral hearing loss and lumbosacral spine disability are more disabling than currently (and initially) evaluated. The record evidence shows that his most recent VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) and VA back (thoracolumbar spine) conditions DBQ occurred in October 2016. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). The Board next notes that the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbosacral spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. The October 2016 VA back (thoracolumbar spine) conditions DBQ does not comply with Correia. Id.; see also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examinations in October 2016, the Board finds that, on remand, he should be scheduled for updated VA examinations to determine the current nature and severity of his service-connected bilateral hearing loss and lumbosacral spine disability. 2. Entitlement to an earlier effective date than October 6, 2016, for a 20 percent rating for a lumbosacral spine disability is remanded. The Veteran finally contends that he is entitled to an earlier effective date than October 6, 2016, for a 20 percent rating for his service-connected lumbosacral spine disability (earlier effective date claim). He essentially testified at his June 2021 Board hearing that the appropriate effective date for this rating is in approximately 2010 when the symptomatology attributable to his service-connected lumbosacral spine disability allegedly worsened. The record evidence indicates that the basis for the 20 percent rating currently (and initially) assigned for the service-connected lumbosacral spine disability was the October 2016 VA back (thoracolumbar spine) conditions DBQ although this examination did not comply with Correia (as noted above). Because adjudication of the increased rating claim being remanded in this appeal likely will impact adjudication of the earlier effective date claim, the Board finds that these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the earlier effective date claim must be deferred. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected bilateral hearing loss. 3. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected lumbosacral spine disability. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.