Citation Nr: 21073297
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 19-03 627
DATE: December 8, 2021

REMANDED

Entitlement to a disability rating higher than 10 percent for degenerative disc disease of the thoracolumbar spine is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1993 to September 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision.

The Veteran recently testified before the undersigned at a Board hearing.  The transcript from the hearing has not yet been associated with the file as the appeal is under the Board's "One Touch" program.  The hearing transcript will still be processed and associated with the claims file in the ordinary course of business.

The Veteran was last afforded a VA examination to assess the severity of his service-connected back disability in September 2017.  At his recent Board hearing, the Veteran testified his condition had worsened since that examination.  To ensure the record reflects the current severity of his service-connected back disability on appeal, a more contemporaneous examination is warranted.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination).

The matter is REMANDED for the following action:

1. Obtain any updated VA treatment records and additional private treatment records related to the Veteran's claim.

2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected back disability.  The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed.

The appropriate Disability Benefits Questionnaire should be filled out.

The examiner must include all the following:

(a.) Active range of motion testing results,

(b.) Passive range of motion testing results,

(c.) Weightbearing range of motion testing results, and

(d.) Nonweightbearing range of motion testing results.

If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation.  In any event, the type of test performed (i.e., active or passive, weightbearing or nonweightbearing), must be specified.

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.

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.

The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached.

 

 

P. M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Buck Denton

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.