Citation Nr: 21006927 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-49 492 DATE: February 5, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to February 1985, from August 1991 to March 1992 and from November 1993 to September 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020 the Veteran testified at a virtual hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. Regarding the Veteran’s claims for initial rating in excess of 20 percent for a lumbar spine disability and initial ratings in excess of 10 percent for radiculopathy of the lower right and left extremities disabilities, the Board notes that the last VA examination for these service-connected disabilities took place in August 2015. Notably, at his July 2020 hearing, the Veteran testified that his service-connected lumbar spine and radiculopathy disabilities had worsened since his last VA examination in August 2015 as occasionally he had to crawl up stairs because of the pain he experienced. The Veteran also testified that when his back “went out” he had to lie down in bed for several days while during bad days for his radiculopathy he could not walk two steps without pain. Given that the Veteran indicated that his service-connected lumbar spine and radiculopathy disabilities had worsened and he appears to be receiving continued treatment for these disabilities, the Board is of the opinion that a new VA examination would be probative. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected lumbar spine and radiculopathy disabilities, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected lumbar spine and radiculopathy disabilities. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran’s lumbar spine and radiculopathy disabilities. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected lumbar spine and radiculopathy disabilities on his ability to work. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.