Citation Nr: 21009702 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-89 785A DATE: February 23, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for chronic lumbosacral strain with degenerative disc disease prior to July 30, 2013, and in excess of 40 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1986 to February 1987. This matter comes before the Board of Veterans Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for chronic lumbar strain with osteophytes (claimed as low back condition) and assigned an initial 10 percent rating, effective April 16, 2007. In February 2011, the Veteran filed a timely Notice of Disagreement (NOD) regarding the initial 10 percent rating assigned. In an October 2013 rating decision, the RO recharacterized the Veteran’s service-connected low back disability as chronic lumbosacral strain with degenerative disc disease and increased the rating for that disability to 40 percent, effective July 30, 2013. Although a higher rating was granted, the issue remains in appellate status, as the RO did not assign the maximum schedular rating for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, in October 2013, the RO issued a Statement of the Case (SOC). In December 2013, VA received the Veteran’s timely substantive appeal. In August 2019, the Board remanded the matter to the RO for further development. While the matter was in remand status, in an August 2020 rating decision, the RO granted service-connection for lumbar radiculopathy of the left and right lower extremities and assigned initial 20 percent ratings for each extremity, effective July 30, 2013. In addition, the RO granted service-connection for bowel incontinence and assigned an initial 10 percent rating, effective July 30, 2013. The record contains no indication that the Veteran has initiated an appeal with respect to the downstream elements; thus, those matters are not in appellate status at present. 1. Entitlement to an initial rating in excess of 10 percent for chronic lumbosacral strain with degenerative disc disease prior to July 30, 2013, and in excess of 40 percent thereafter. The Veteran was last afforded a VA examination in November 2019. Since that time, she has submitted a statement, received in September 2020, indicating that her low back disability continues to worsen. She indicated that on many days, her back pain and body movement have worsened to the point that she is incapacitated and unable to function normally. The Veteran indicates that on many days she needs help getting dressed, sitting in a chair, sitting on the toilet, and getting in and out of the car, which she is unable to drive when she is in extreme pain. As a result of her increased symptoms, the Veteran requested a new examination as she does not believe the previous examination adequately reflected the severity of her symptoms. Where there is evidence that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence that addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). In order to properly adjudicate the claim, a VA examination should be obtained to determine the current severity of the service-connected low back disability. In addition, the Veteran reported in her September 2020 statement that she continues to receive regular medical care for her service-connected low back disability, to include injections for back pain. She also reports that she sees a neurologist several times per year at a VA medical facility. A review of the record, however, indicates that the most recent clinical evidence of record is dated in November 2012. Thus, additional development action is necessary. The matter is REMANDED for the following action: 1. After obtaining any additional information and authorization from the Veteran, obtain all outstanding records pertaining to treatment of the Veteran’s low back disability for the period from April 2007 to the present. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal and private facilities. All records/responses received should be associated with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected low back disability. The examination should be conducted in accordance with the current disability benefits questionnaire, to include addressing at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. In addition, the examiner should address the impact of the Veteran’s low back disability upon her industrial activities, including her ability to obtain and maintain substantially gainful employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.