Citation Nr: 21070463 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-00 575A DATE: November 24, 2021 REMANDED Entitlement to a rating in excess of 20 percent for thoracolumbar degenerative joint disease with muscle spasm (low back condition) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to January 2013. This matter comes before the Board on appeal from a May 2018 Regional Office (RO) rating decision. In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 1. Entitlement to a rating in excess of 20 percent for thoracolumbar degenerative joint disease with muscle spasm (low back condition) is remanded. The Veteran contends he is entitled to a higher rating for his low back condition. In April 2018 the Veteran was afforded a VA examination. The examiner noted the Veteran reported flare-ups. The examiner indicated the Veteran's range of motion was normal. Range of motion testing showed forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. The examiner noted there was no pain with weightbearing. The examiner noted range of motion during flare-ups to be forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. The examiner noted the Veteran does not have guarding or muscle spasm. The examiner also noted the Veteran does not have ankylosis or intervertebral disc syndrome (IVDS) An October 2018 treatment note shows the Veteran reported back pain present for at least seven to eight years has gradually worsened over the last few years. The Veteran reported trouble sitting, standing, laying down, and burning in nature that shoots down the right buttocks' and the right groin down to the right knee. The Veteran also reported the pain occurs on the left side sometimes with pain down to the knee but not groin pain. Additionally, he reported he feels pain when he runs his hand over the upper part of the groin/hip area on the right side and sometimes it feels like it is coming from the back into the buttocks' and then into the groin. In the November 2018 notice of disagreement (NOD), the Veteran stated that since the April 2018 exam his level of pain has increased significantly and has eroded his ability to carry out every day personal and work-related tasks. The Veteran stated that any forward flexing or standing for short periods of time is with great pain in the lower back and shoots down his legs. A November 2019 treatment record notes the Veteran reported sharp back pain exacerbated by walking, and leaning backwards affects physical activity, walking, sleep, and work activity. The Veteran reported the pain is relieved by sitting down or leaning forward. The examiner reported a decreased range of motion in all directions. At the May 2021 Board hearing, the Veteran stated the pain shoots down the back from the tail bone to the legs to maybe the knees. He also stated the right side goes all the way down to the foot and he cannot walk or stand behind the lawn mower. In addition, when he coughs or sneezes it hurts his lower back and he cannot golf, bowl, or climb ladders to do household chores. In an August 2021 statement the Veteran stated standing for more than a minute or two is extremely painful as well as walking for more than about eighty feet. The Veteran stated he is unable to climb ladders to hang curtains or change light bulbs as it is painful and the stability of his back puts him at risk of falling. Additionally, the Veteran stated that putting on his belt and trying to tie his shoes has become daily painful experiences. An August 2021 statement from the Veteran's coworker identifies that the Veteran's back condition has an impact on his work causing his coworker to perform tasks for the Veteran that require bending and lifting heavy items. The Veteran indicated in his November 2018 NOD and January 2019 VA Form 9 that his symptoms have worsened. In a November 2019 treatment record the examiner noted decreased range of motion in all directions. The Veteran has not been afforded a VA examination for his back condition since 2018. Accordingly, remand is warranted for an examination to assess the current severity of low back condition. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file. 2. Afford the Veteran a VA examination to determine the current severity of his low back disability. The Veteran should be interviewed, and all indicated tests and studies should be accomplished. All findings should be reported in detail. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion (1) on BOTH active and passive motion AND (2) in weight-bearing and non-weight-bearing, if appropriate. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner must note whether the Veteran demonstrates objective evidence of pain on active and passive motion and, if so, at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees). The examiner should also express an opinion concerning whether there would be additional functional impairment during flare-ups assessed in terms of the degree of additional range of motion loss. If the Veteran is not currently experiencing a flare-up and reports that he has flare-ups, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.