Citation Nr: 21070311 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-57 403 DATE: November 23, 2021 REMANDED The issue of entitlement to a rating for chronic low back strain in excess of 10 percent for the period prior to June 3, 2011, and in excess of 20 percent for the period thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from March 1975 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) from a April 2009 rating decision. The Veteran testified before the Board at hearings in October 2016 and August 2021. Transcripts of the hearings have been associated with the claims file. As an initial matter, it is noted the Board also had before it the issue of whether a timely substantive appeal was filed to perfect an appeal of an April 2009 rating action. As set out below, however, the April 2009 rating action had not become final, and was subsumed by a January 2013 rating action, for which a timely appeal was perfected. In this regard, the record shows that on February 24, 2009, the Veteran filed a claim for an increased rating for chronic low back strain. In an April 2009 rating decision, the assigned 10 percent rating was continued for chronic low back strain. In May 2009, the Veteran submitted a timely notice of disagreement (NOD) and attached additional VA treatment records that were not considered in the April 2009 rating decision. In September 2009, the Veteran submitted a second NOD in response to the April 2009 rating decision and attached additional private treatment records for consideration. In January 2013, a statement of the case (SOC) and rating decision were issued simultaneously, which granted a 20 percent rating for chronic low back strain effective June 3, 2011. The January 2013 SOC also considered the additional VA treatment records and private treatment records submitted with the May 2009 and September 2009 NODs, which had not been considered in the April 2009 rating decision. In July 2013, the Veteran submitted a statement asserting that he disagreed with the February 2013 award letter and asserting that his disability warranted a higher rating. In February 2015, the Veteran also submitted a VA Form 9 regarding his claim of an increased rating for chronic low back strain. In a September 2017 Board decision, the Board remanded the issue of whether a timely substantive appeal was filed to perfect an appeal for the agency of original jurisdiction (AOJ) to issue a SOC. Subsequently, in an October 2017 SOC, the AOJ determined that the July 2013 statement did not constitute a timely in lieu of a VA Form 9 in response to the January 2013 SOC; however, the AOJ also determined that the July 2013 statement constituted a timely NOD in response to the January 2013 rating decision. Following the October 2017 SOC, the Veteran submitted a timely VA Form 9 in October 2017 regarding the issue of an increased rating for chronic low back strain, which was properly certified to the Board in a November 2017 VA Form 8. The Board finds that as the Veteran submitted relevant VA treatment records and private treatment records within one year, the April 2009 rating decision could not become final until VA addressed that evidence. See 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014). VA did not address that evidence between the April 2009 decision and the January 2013 SOC and simultaneous rating decision. Thus, the date of claim in this case for an increased rating is February 24, 2009. Chronic Low Back Strain The Board finds that further development is necessary regarding the claim of an increased rating for chronic low back strain. During the August 2021 hearing before the Board the Veteran stated that his disability has worsened since the time of his last VA examination, which was over 10 years ago in June 2011. He stated that he now has ankylosis of the spine, has trouble sitting and standing, has pain in any position, and has severe flare-ups approximately twice a month causing him to be unable to move his back. When evidence indicates that a service-connected disability is worse than it was at the time of a Veteran's most recent VA examination, as is the case here, it is within VA's duty to assist that he be afforded a new examination in order to accurately assess the current level of impairment. Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997). Thus, the Board finds that a remand is warranted to obtain a new VA examination. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records of treatment he wishes considered in connection with his claim, which records should be sought. 2. Schedule the Veteran for an examination to determine the current severity of his chronic low back strain. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. The examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. b. The examiner should determine whether the Veteran's spine disability was manifested by weakened movement, excess fatigability, incoordination, and/or pain after repetitive use over time and/or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner should also consider all lay statements submitted by the Veteran regarding his disability. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.