Citation Nr: 21071411 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-19 357 DATE: November 30, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2001 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and June 2021, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran was last afforded a VA examination to address the severity of his service-connected lumbar spine disability in November 2019. Since that time, evidence has been added to the claims file which suggests the Veteran's lumbar spine disorder has increased in severity. See October 2020 Initial Examination, page 38 (reflecting reduced forward flexion); May 2021 Physical Therapy Consult (indicating the Veteran's lumbar radiculopathy affects both lower extremities); June 2021 Follow Up Visit Note (reflecting bilateral lower extremity radiculopathy). VA's duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Thus, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Finally, as this matter is being remanded, the Veteran's updated VA treatment records and any relevant non-VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, from June 2021, forward. 2. Contact the Veteran and request that he complete VA Form 21-4142 to allow VA to request any outstanding private treatment records. After receiving any necessary authorization forms, attempt to obtain the identified records following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. 3. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the severity of his service-connected lumbar spine disorder. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ). The examiner is to specifically test the range of motion of the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or conclude that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. (Continued on the next page) If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.