Citation Nr: 21005689
Decision Date: 02/02/21	Archive Date: 02/02/21

DOCKET NO. 180727-170
DATE: February 2, 2021

REMANDED

A rating in excess of 10 percent for status/post lumbar spine fusion.  

REASONS FOR REMAND

The Veteran served on active duty from January 1982 to May 2007. She has been 100 percent disabled based on unemployability since December 2010.

In September 2013, the Veteran’s lumbar spine disability was reduced from 40 percent to 10 percent. In January 2014, she timely appealed the denial. A May 2015 rating decision continuing the 10 percent rating, to which she timely appealed. In May 2018, she opted into the Appeals Modernization Act (AMA), 38 C.F.R. § 19.2(d) (2020). 

In January 2019, the Board denied the appeal. The Veteran appealed to the Veterans Claims Court. In October 2019, the Court Clerk granted a joint motion for remand (JMR) and returned the appeal to the Board. In March 2020, the Board again denied the appeal. She again appealed to the Court, which the Court Clerk again granted a JMR. These actions stem the basis for the current appeal.

In an October 2020 statement, the Veteran argued that because she was not issued a statement of the case (SOC) following her timely appeal of the September 2013 rating decision, she was entitled to a restoration of her 40 percent rating for a lumbar spine disability; however, as she has not opted into AMA with respect to the claim of restoration, the Board does not have jurisdiction over that issue.

As to the claim of a rating in excess of 10 percent for a lumbar spine disability, the Court found that the Board failed to consider the Veteran’s statements made in the December 2015 notice of disagreement (NOD) that her lumbar spine disability had worsened and that she had not refused to perform range of motion testing at the February 2015 VA examination. The Court directed the Board to determine whether a pre-decisional duty to assist error had been made in not ordering the Veteran a new VA examination. 

Based on the JMR, a pre-decisional duty to assist error was made when the Agency of Original Jurisdiction did not order a new examination.

The matter is REMANDED for the following actions:

1. Schedule the Veteran for an examination to determine the current nature and severity of her low back disability. The file and a copy of this remand should be made available to the examiner.

2. The examiner is requested to specifically consider the Veteran’s lay statements as part of the clinical assessment. 

 

L. HOWELL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Ragofsky, Attorney Advisor 

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.