Citation Nr: 21076724 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-21 312 DATE: December 27, 2021 REMANDED Entitlement to an increased rating for lumbar strain in excess of 10 percent, is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The Veteran served in the United States Army from November 1982 to November 1986. This matter comes before the Board of Veterans' Appeals on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. The Board concludes that the TDIU claim is properly before it under Rice as the Veteran has asserted, in September 2021 during his Board hearing, that his service-connected traumatic lumbar strain has contributed to his inability to secure and maintain substantially gainful employment. Accordingly, the Board is assuming jurisdiction over the TDIU claim on a derivative basis. 1. Entitlement to an increased rating for lumbar strain is remanded. The Veteran seeks a higher evaluation for his lumbar strain that he contends has worsened since his last VA examination in December 2016. Specifically, the Veteran contends that his lumbar strain has contributed to him being bed ridden and now causes radiculopathy along with reduced range of motion. Lastly the Veteran contends that he now experiences arthritis and side effects associated with two bone marrow transplants. See January 2017 Notice of Disagreement; April 2017 VA Form 9; September 2021 Board Videoconference. The Board is not required to seek a new VA medical examination based solely on the mere passage of time. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). However, a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Reexaminations will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a). The Veteran was last afforded an examination of his lumbar strain seven years ago, and he has asserted worsening in writing and at his September 2021 Board hearing. Thus, the Board finds a new examination is necessary to assess the current severity of the lumbar strain disorder. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Of note, the Veteran's lumbar strain is rated under DC 5237 (prior DC 5295). The Veteran's back disability is rated as 10 percent disabling from May 1988. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, DC 5237 was not changed. 2. Entitlement to TDIU is remanded. The record indicates that a TDIU claim has been raised by the Veteran during the pendency of this appeal. Per Rice v. Shinseki, supra, VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability is raised either expressly or by the record. The Veteran raised the issue of TDIU expressly at his September 2021 Board hearing. The Veteran must be provided with specific notice and adjudication concerning his TDIU claim on remand, and should be allowed an opportunity to update VA on his more recent employment record (if any). 38 C.F.R. § 3.159(b). The matters are REMANDED for the following action: 1. Contact the Veteran, via a 38 C.F.R. § 3.159(b) notice letter addressing his TDIU claim and furnish the Veteran a VA Form 21-8940. Complete any development and adjudication warranted by the Veteran's response, including obtaining all outstanding medical records in accordance with the duties of 38 C.F.R. § 3.159(c). 2. Afford the Veteran a VA lumbar spine examination with a qualified medical examiner who has reviewed the claims file in conjunction with the examination. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed. Examinations must include: a.) Joint testing for pain on both active and passive motion. b.) In weight-bearing and non-weight-bearing when appropriate. c.) Whether pain, weakness, fatigability, or incoordination cause additional functional impairment of the lumbar spine on repeated use overtime OR during flare-ups. d.) The examiner will comment on the Veteran's reported bone marrow transplants and any function loss/aggravation associated with such transplants in association with the examination (i.e., a, b, c above). e.) If necessary, radiographic images should be taken of the Veteran's back. f.) Any associated objective neurological abnormalities should be noted, and if present these should be described in terms of severity. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.