Citation Nr: 21074899 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-53 039 DATE: December 16, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome (lumbar spine disability) is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1979 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the 20 percent rating for a lumbar spine disability. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2020. A copy of the transcript has been reviewed and associated with the claims file. This matter was before the Board in February 2021, at which time it was remanded. While in remand status, in an April 2021 rating decision, the RO granted service connection for a right knee disability. Thus, this issue is no longer in appellate status. The Board notes that a VA form 21-22 was submitted in August 2016, which listed attorney Travis Miller as the Veteran's representative and was also signed by the Veteran in August 2016. In February 2017, a VA form 21-22 was submitted and listed American Legion as the Veteran's representative. Although subsequently submitted, it was signed by the Veteran in May 2016. Attorney Miller represented the Veteran at the hearing in November 2020. A letter was sent to the Veteran in October 2021 requesting clarification regarding his representation. To date, the Veteran has not responded. After a review of the evidence, the Board finds that attorney Miller is the current representative. If the Veteran wishes to change representatives, he should respond to the October 2021 letter and/or submit a new VA form 21-22. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome is remanded. A VA examination was performed in August 2020 to assess the severity of the Veteran's lumbar spine disability. However, after a review of the evidence, the Board finds that an addendum opinion is warranted on remand. In this regard, the examiner indicated that the Veteran had pain with weight bearing but failed to provide correlating range of motion findings in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, pursuant to the Board's remand instructions, a Supplemental Statement of the Case (SSOC) was issued in April 2021. The SSOC indicated that the Veteran's VA treatment records up to January 2021 were reviewed by the RO. The Board notes that following the issuance of the SSOC, the Veteran's relevant VA treatment records from January to October 2021 were obtained and associated with the claims file. However, the RO did not prepare an SSOC considering this newly VA generated evidence. Accordingly, a remand is required for the issuance of an appropriate SSOC that considers the additional VA treatment records. 38 C.F.R. § 20.1305(c). The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from January 2021 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand, to the August 2020 examiner for an addendum medical opinion regarding the severity of the Veteran's lumbar spine disability. If the August 2020 examiner is unavailable, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record and respond to the following questions: A. With regard to the August 2020 VA examination, provide an estimate of the Veteran's lumbar spine range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. B. With regard to the August 2020 examination for the lumbar spine, indicate how far back these results would apply (i.e., one year, two years, etc.). The examiner is to attempt to elicit information from the record to reply to A and B. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner may indicate the degree of confidence that they place on their estimate, on a scale of 1 to 5, with 1 being least confident and 5 being most confident. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. 3. After completion of #1 and #2, readjudicate the issue on appeal, to include consideration of the additional VA treatment records from January 2021 to the present. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide the Veteran an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.