Citation Nr: 21072612 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-19 380 DATE: December 3, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1993 to February 1998 and from March 2000 to April 2009. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing before a Veterans Law Judge in April 2016. The Board remanded this matter in December 2015 and August 2018. In an August 2020 letter, the Board informed the Veteran that the Veterans Law Judge who conducted the April 2016 hearing was no longer employed by the Board. The Board offered the Veteran an opportunity to request another hearing and allotted 30 days for the Veteran to respond. The Board notified the Veteran that if he did not respond within 30 days of the letter dated August 4, 2020, the Board would proceed to issue a decision without a hearing. While the Board received correspondence from the Veteran on September 9, 2020 indicating the Veteran wanted to attend another hearing, the correspondence was not timely received within the 30-day period. In an October 2020 decision (with corrections in November 2020), the Board denied the Veteran's claims for increased disability ratings for a low back disability while granting increased ratings for associated radiculopathy of the lower extremities. In the decision, the Board acknowledged the file contained an October 2020 letter offering the Veteran a virtual tele-hearing, which the Board found was sent to the Veteran by mistake. However, the Board did not discuss the Veteran's untimely hearing request in the decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In July 2021, the CAVC granted a Joint Motion for Partial Remand (JMPR), vacated the Board's decision in part, and remanded this matter to the Board for action consistent with the JMPR. The JMPR indicates that neither the VA examinations of record nor the Board provided adequate discussion of the Veteran's functional limitations of the low back, to include as due to flare-ups, pain, weakness, fatigability, and incoordination due to repeated use over time. The JMPR indicates VA should afford the Veteran an additional examination of his low back and provide adequate reasons and bases for its decision. It notes the Veteran agreed to abandon all other claims on appeal including increased ratings for radiculopathy of the lower extremities. It also indicates the Board should consider affording the Veteran an opportunity for another hearing on account of the earlier hearing request and the Board's subsequent letter. The November 2021 Appellant's Brief from the Veteran's representative indicates that VA should address the deficiencies in the prior VA examinations. It does not indicate the Veteran wishes to attend a hearing before the Board remands the matter for a new examination. Therefore, the Board will proceed to remand this matter to address the concerns in the JMPR about the examination deficiencies. The Veteran may request another hearing if the matter returns to the Board. The Board REMANDS this matter for the following actions: 1. VA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the file, VA should afford the Veteran a new examination of the severity of his low back disabilities during the period on appeal. VA should ensure the examination evaluates both the current severity of the Veteran's low back disability and the severity of the disability during the entire period on appeal retrospectively. VA should ensure the opinion addresses the concerns in the June 2021 JMPR. In pertinent part, the examiner must provide an assessment of the Veteran's functional limitations (e.g. limitation of motion) of the low back, to include as due to flare-ups, pain, weakness, fatigability, and incoordination after repeated use over time. The examiner's assessment should be based on the totality of the evidence including the Veterans treatment records and lay statements. If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.