Citation Nr: 21007637 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 11-13 962 DATE: February 10, 2021 REMANDED Issue of entitlement to a rating in excess of 10 percent prior to April 14, 2011, and in excess of 20 percent thereafter, for lumbar spinal stenosis, status post-operative scar, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to February 1993. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2009 rating decision issued by the Department of Veterans Affairs (VA). See September 2010 Notice of Disagreement (NOD); March 2011 Statement of the Case (SOC); May 2011 Substantive Appeal (VA Form 9). During the pendency of the appeal, the Veteran was granted an increased rating of 20 percent rating for his lumbar spinal stenosis, status post-operative scar, effective April 14, 2011. June 2016 Rating decision. In April 2017, the Board remanded the claims for further development, including a VA examination that complies with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). See April 2017 Board decision. In September 2019, the Board remanded the Veteran’s claim of entitlement to a TDIU and denied the claim of entitlement to an increased rating for lumbar spinal stenosis, status post-operative scar. September 2019 Board decision. The Veteran appealed the September 2019 Board decision to the United States Court of Appeal for Veterans Claims (CAVC) and, through a Joint Motion for Partial Remand, the issue of entitlement to an increased rating for lumbar spinal stenosis, status post-operative scar was remanded for further development and reasons and bases. See July 2020 CAVC decision. While on remand after the September 2019 Board decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran a TDIU, effective April 14, 2011. August 2020 Rating decision. 1. Issue of entitlement to a rating in excess of 10 percent prior to April 14, 2011, and in excess of 20 percent thereafter for lumbar spinal stenosis, status post-operative scar, is remanded. Pursuant to the July 2020 CAVC decision, the Board finds that further development of the evidence is needed. The AOJ should attempt to obtain the private treatment evidence from R S, M.D., and M S, M.D., listed on the Veteran’s January 2019 correspondence. See July 2020 CAVC decision. The AOJ should also contact the Veteran about any outstanding treatment evidence for his lumbar spinal stenosis that is not already part of the claims file. In addition, the Board finds that clarification is needed by a VA examiner about any flare-ups from the Veteran’s lumbar spinal stenosis disability. The April 2011 VA examiner noted that the Veteran reported flare ups in his spinal condition from walking, lifting, bending, and riding in vehicles every three to four months, lasting one to two days, and that he would be unable to get out of bed. April 2011 VA examination for general medical. The Veteran continued to report flare-ups during his July 2016 VA examination for back conditions, but only describes that he “pays for it the next day.” The May 2017 VA examiner noted no reported flare-ups of his back condition. May 2017 VA examination for back conditions. Clarification is needed about the Veteran’s symptoms during a flare-up of his back condition is needed. Finally, as noted in the September 2019 Board decision, the May 2017 VA examination for back conditions did not mention passive range-of-motion testing. On remand, the VA examiner should opine on whether passive range of motion testing is feasible and probative for evaluating the Veteran lumbar condition. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his back condition and provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. The AOJ should specifically attempt to obtain treatment records from the private treatment providers listed on the January 2019 Correspondence provided by the Veteran. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. After the development above has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spinal stenosis, status post operative scar. (a) In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should consider the Veteran’s reported flare-ups during his prior April 2011, July 2016, and May 2017 VA examinations. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.