Citation Nr: 21007512 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-17 394 DATE: February 9, 2021 ISSUES Entitlement to an increased disability rating in excess of 20 percent for lumbar spine multilevel degenerative changes. Entitlement to a disability rating in excess of 10 percent prior to January 8, 2019 and from March 1, 2019 for chronic cervical strain with mild degenerative changes. REMANDED Entitlement to an increased disability rating in excess of 20 percent for lumbar spine multilevel degenerative changes is remanded. Entitlement to a disability rating in excess of 10 percent prior to January 8, 2019 and from March 1, 2019 for chronic cervical strain with mild degenerative changes is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 26, 1969 to July 14, 1971, from July 15, 1971 to April 1, 1974 and from April 2, 1974 to September 30, 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran was granted service connection for his lumbar spine disability in June 2008 with a 10 percent rating assigned effective May 2, 2008. The Veteran was also granted service connection for his cervical strain disability in June 2008 with a 10 percent rating assigned effective May 2, 2008. In June 2009 the Veteran filed for an increased rating for his lumbar spine disability and was assigned a 20 percent rating effective September 1, 2009. In October 2017 the Veteran filed for an increased rating for both his lumbar spine disability and his cervical strain disability which were both denied in the January 2018 rating decision which is currently on appeal. The Board finds that further evidentiary development is required before the claims for increased ratings on appeal can be adjudicated. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. Entitlement to an increased disability rating in excess of 20 percent for lumbar spine multilevel degenerative changes is remanded. 2. Entitlement to a disability rating in excess of 10 percent prior to January 8, 2019 and from March 1, 2019 for chronic cervical strain with mild degenerative changes is remanded. The Veteran contends that his lumbar spine and cervical strain disabilities are more severely disabling than reflected in the currently assigned ratings. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was last afforded a VA examination for his lumbar spine and cervical strain disabilities in November 2017. Subsequently, in his January 2019 Notice of Disagreement the Veteran alleged that his service- connected disabilities have continued to worsen since his last VA examination. The evidence of record also reflects that the Veteran underwent surgery for his cervical spine in February 2019. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, as the Veteran last underwent a VA back examination in November 2017, he should be afforded new VA examinations to assess the current nature, extent and severity of his service- connected lumbar spine and cervical strain disabilities. Additionally, the record reflects that on January 8, 2018 the RO sent the Veteran a notification letter informing him that additional evidence was needed from him. The Veteran sent correspondence to VA in January 2018 and October 2020 and requested clarification of the January 2018 letter. To date the record does not reflect that the RO has responded to the Veteran’s requests. As such, the matter is referred to the AOJ to respond in writing to the Veteran's inquiries. Finally, the Board notes that the record indicates there may be outstanding records relevant to the Veteran's claim. Specifically, in October 2020 correspondence the Veteran indicated that he was scheduled to have an Electromyograph (EMG) test as well as Nerve Conduction Studies conducted at the University of South Florida Medical Clinic in November 2020. It does not appear as though these records have been associated with the claims file. VA has a duty to assist the Veteran in obtaining all relevant records. See 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). This duty has not been met with regard to the outstanding records, and therefore, on remand, the RO should follow proper procedures to obtain and associate these records with the claim file. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide names, addresses and approximate dates of treatment of his service-connected lumbar spine and cervical strain disabilities. The Veteran should be provided the appropriate releases for VA to obtain any identified private sources of treatment. Thereafter, the AOJ should attempt to obtain outstanding records from any identified sources for which the Veteran has provided appropriate signed releases. Any records obtained should be associated with the claims file. All attempts to obtain these records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain any outstanding VA treatment records regarding the Veteran's treatment for his service-connected lumbar spine and cervical strain disabilities. 3. Respond in writing to the Veteran’s January 2018 and October 2020 correspondence and provide clarification of the January 8, 2018 notification letter. 4. After the above development is completed, schedule the Veteran for a new VA examination with a VA medical professional with expertise in orthopedics, and to determine the current nature and severity of his service- connected lumbar spine and cervical strain disabilities. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's back, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. The examiner must in particular render an opinion as to the current severity of any radiculopathy. The examiner should note the symptomatology attributable to any radiculopathy and comment as to whether the symptoms are best described as mild, moderate, or severe incomplete nerve paralysis or complete paralysis. The examiner should also comment on the Veteran's ability to function in an occupational or worklike setting, and describe any functional impairment caused solely by his service-connected degenerative ] lumbar spine and cervical strain disabilities (specifically taking into account the Veteran's neurological and orthopedic manifestations). 5. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.