Citation Nr: 21074543 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-29 377 DATE: December 15, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbosacral strain and spondylolisthesis with degenerative arthritis of the spine is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Air Force from October 1970 to October 1974 and September 1977 to July 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a July 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In July 2020, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. 1. Entitlement to a rating in excess of 10 percent for lumbosacral strain and spondylolisthesis with degenerative arthritis of the spine is remanded. The Veteran was granted service connection in September 1996 with an evaluation of 10 percent for lower back strain based on painful or limited motion, under Diagnostic Code (DC) 5295. He brought a claim for an increased rating in April 2018, contending that his disability has progressed and symptoms have worsened since that time. The Veteran is currently rated under DC 5242-5237 for lumbosacral strain and spondylolisthesis with degenerative disc disease under the General Rating Formula for Diseases and Injuries of the Spine. A VA examination was provided in May 2018 to assess the severity of his lumbar spine disability. However, the Board finds the Veteran was not provided an adequate examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand of the claim is necessary to provide a new examination and clarify the evidence of record for proper appellate adjudication. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). While the VA examiner notes the Veteran's abnormal range of motion, he did not address other pertinent symptoms or contentions reported by the Veteran. The examination report notes the Veteran does not have radicular pain or any other sign or symptom of radiculopathy. However, this finding is not supported by the medical and lay evidence of record. The Veteran testified he experiences radiating pain from his left lower back, down his left leg to the knee. Hearing, 7/17/2020, pg. 4/13. This is supported by the September 1996 rating decision that notes radiating pain into the left hip, as well as VA treatment records from 2005 to 2010 noting thigh numbness and tingling in the left lower extremity. CAPRI, 5/3/2018, pgs. 99, 128/142. Fatigue and numbness in the legs is also noted in private treatment records from June 2008 through August 2020. MTR- Non-Gov, 12/10/2020, pgs. 2, 5, 20, 70/70. Further, the Veteran's chiropractor, Dr. JS, submitted an October 2020 letter confirming the Veteran's report of radiating pain in the lower extremity. Id. at 1/70. As separate ratings under different Diagnostic Codes for the involvement of different nerves in the left lower extremity are possible, remand to provide the Veteran with an adequate examination and opinion regarding the lay and medical evidence showing a diagnosis of radiculopathy is warranted. The VA examiner also indicated an absence of flareups and symptoms of muscle spasm or guarding. However, at his July 2020 hearing, the Veteran testified he requires frequent and regular chiropractic treatment to ease muscle spasms. He reported the use of daily medication in order to sleep through the night and, at times, requires stronger prescription medication to manage his pain. Additionally, he testified he has required bedrest or experienced other incapacitating episodes. As favorable evidence showing an increase in severity has not been considered, remand to obtain an opinion that considers the Veteran's contentions is necessary. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran testified he has received treatment for many years from a private provider, Dr. MAL. He reported a private physician notified him of bulging discs that are close to rupture, likely as the result of a prior broken back. An MRI performed in May 2018 confirms this testimony, showing bulging discs in multiple joints. MTR- Non-gov, 12/10/2020, pg. 6/70. Dr. JS's October 2020 letter supports a finding the Veteran experienced an increase in symptoms since 2018, noting objective changes to the Veteran's spine shown by imaging studies. Id. at 1/70. However, the May 2018 VA examiner did not conduct diagnostic imaging, but rather indicates only a 2014 bone scan was reviewed. Upon remand, the RO should obtain any unsecured private medical records relevant to the Veteran's claim, and a medical examiner should perform any necessary neurologic or diagnostic imaging testing to reconcile the above favorable evidence. Accordingly, the Board finds remand is necessary for further development and to provide the Veteran with an adequate examination assessing the severity and extent of the Veteran's lumbar spine disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Provide the Veteran with the appropriate information release forms to obtain any outstanding private medical records relevant to his claim specifically from Dr. MAL and Dr. JS. All requests, responses, and records received should be documented in the claims file. 3. Thereafter, schedule the Veteran for examination with the appropriate examiner to determine the severity of the Veteran's lumbar spine disability and any related lower extremity neurological conditions. Following examination of the Veteran to include any necessary diagnostic testing, and review of private and VA treatment records, as well as lay statements, the examiner is asked to consider: a. All pertinent symptomatology and findings related to the lumbar spine, including any resulting radiculopathy. Ranges of motion involving the spine should be tested and record the range of motion in active and passive motion, and weight-bearing and non-weight-bearing. b. whether the Veteran's lumbar spine condition significantly limits functional ability during flare-ups or during periods of repeated use. The examiner should note if repeated range of motion testing results in additional limitation of motion. c. Whether any pain associated with his conditions result in functional loss, weakened movement, excess fatigability, or incoordination, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. d. Whether there are associated neurological disabilities, to include radiculopathy, and if so, their severity. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.