Citation Nr: 21005398 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-40 993 DATE: February 1, 2021 REMANDED Entitlement to a rating in excess of 40 percent from September 6, 2013 for lumbar strain with discogenic disease at L5-S1 claimed as back pain is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1992 to July 1992 and from November 1993 to May 2000. This matter come before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in December 2008, contending that she is entitled to an initial rating in excess of 20 percent for lumbar spine disability. Thereafter, a May 2015 rating decision assigned a 40 percent rating from September 6, 2013. Thus, the issues before the Board were entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period prior to September 6, 2013 and entitlement to a rating in excess of 40 percent beginning September 6, 2013 and thereafter. These matters were remanded in November 2017 for further development. Subsequently, a December 2019 Board decision denied the Veteran’s claim for entitlement to an initial rating in excess of 20 percent for lumbar spine disability prior to September 6, 2013. The December 2019 Board decision remanded the issue of entitlement to a rating in excess of 40 percent for lumbar spine disability from September 6, 2013. For the reasons discussed below, this claim must again be remanded. Entitlement to a rating in excess of 40 percent for lumbar strain with discogenic disease at L5-S1 claimed as back pain is remanded. This matter is remanded for a new VA examination. Following the December 2019 Board remand the Veteran was scheduled for a new VA examination. A February 2020 exam requests notes that the examination was canceled because the Veteran failed to show for the appointment. However, considering the current COVID-19 pandemic, and in deference to the Veteran, the Board will afford the Veteran another opportunity for a VA examination. Nonetheless, the Veteran is cautioned that the duty to assist is not a one way street. If a Veteran desires help, he or she cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all outstanding treatment records have been obtained, schedule the Veteran for a VA examination to determine the nature and current severity of her service-connected lumbar spine disability. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If possible, provide these tests for the opposite joint. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. A detailed rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. b) Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including frequency, duration, severity, and functional impairment. c) Provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran’s lay descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner.3.After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, 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.