Citation Nr: 21011347 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-55 127 DATE: March 1, 2021 ORDER Entitlement to an initial compensable evaluation for hypertension is denied. Entitlement to an increased evaluation in excess of 10 percent prior to December 23, 2019 for degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service connected lumbar spine disorder is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine after December 23, 2019, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that the Veteran’s hypertension was not manifested by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Also, the Veteran did not have a history of diastolic pressure predominantly 100 or more. 2. The preponderance of the evidence supports a finding that prior to December 23, 2019, the Veteran’s degenerative arthritis of the lumbar spine was not manifested by evidence of forward thoracolumbar flexion greater than 30 degrees, but not greater than 60 degrees; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. The preponderance of the evidence does not support a finding that the Veteran’s cervical spine disorder is secondary to his service-connected lumbar spine disorder or is otherwise related to an in-service injury or disease. Arthritis did not manifest to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for hypertension are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.104 Diagnostic Code 7101. 2. The criteria for an increased evaluation in excess of 10 percent prior to December 23, 2019 for degenerative arthritis of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.102, 4.1, 4.7, 4.71, DC 5003-5242. 3. The criteria for service connection for a cervical spine disorder, to include as secondary to a service connected lumbar spine disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to August 2004. In a November 2018 decision, the Board remanded the Veteran’s claims for additional development. The Board finds that there was substantial compliance with the November 2018 remand for the issues decided herein. See Stegall v. West, 11 Vet. App. 268, 271. In view of recent contentions advanced, the current rating of the low back disorder is in need of further development. In a July 2020 correspondence to the Board, the Veteran’s representative submitted a 90 day extension request to submit additional evidence. This extension request was granted and again extended for 90 days by a Board letter in November 2020. Thereafter, the Veteran’s representative submitted a February 2021 informal hearing presentation to the Board waiving consideration by the regional office (RO) of the newly submitted evidence. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service “the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Arthritis on the list of diseases presumed to have been incurred in-service and receive a one-year presumption. Service connection may also be established where there is disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran’s lumbar spine disorder has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, and is therefore evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward thoracolumbar flexion that is greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted upon evidence of forward thoracolumbar flexion is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Forward thoracolumbar flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Plate V. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). Also, for consideration, diagnostic code 5010, states that arthritis, due to trauma, is to be rated as degenerative arthritis under Diagnostic Code 5003. That code provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint(s) due to arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. When there is some limitation of motion of the specific joint or joints involved that is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R.§ 4.71a. Here the rating assigned to the low back is based on limitation of motion, thus, the arthritis provisions do not provide a basis for an increased rating. Hypertension is rated under Diagnostic Code 7101, a 10 percent rating is warranted where there is diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warrant where there is diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted where there is diastolic pressure predominantly 120 or more, and a 60 percent rating is warranted where Diastolic pressure predominantly 130 or more. 1. Entitlement to an initial compensable evaluation for hypertension. In the prior November 2018 Board remand, the Board requested that the examiner make a formal finding on whether there was a diagnosis for hypertensive heart disease secondary to hypertension. In a March 2020 supplemental statement of the case SSOC, a determination was made by the RO that the Veteran has not filed a formal claim on the issues; therefore, the issue was not adjudicated. As such, the Boards consideration is solely limited to the issues of entitlement to an initial compensable evaluation for hypertension. In an August 2008 private examiner opinion, the examiner reported that the Veteran has had elevated intermittent blood pressure in the hypertensive range since 2002. In a May 2009 VA examination, blood pressure findings reveal blood pressure readings of 122/82, 124/80, and 124/80. The examiner noted a diagnosis of hypertension that requires continuous medication for treatment. In a December 2019 VA heart examination, the blood pressure was noted at 148/98, 154/96, 142/96. The examiner noted a diagnosis of hypertension that requires continuous medication for treatment. The Board also reviewed the Veteran’s lay statements reporting that the severity of his hypertension disorder warrants a compensable rating. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the severity of a hypertension disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2020). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Review of the record does not provide a basis for granting a compensable rating for hypertension. Although the Veteran is required to continuously take medication for hypertension, the Veteran’s diastolic blood pressure is not predominantly 100 or more, nor does he have a history of such. Further, the Veteran’s systolic blood pressure is not predominantly 160. The Board notes approximately six readings of systolic blood pressure at less than 160, during the pendency of the claim. As such, a 10 percent rating is not warranted and the Veteran’s claim for a compensable rating for hypertension is denied. The Board has determined that the severity, frequency, and duration of the Veteran’s hypertension disorder more closely approximates a diagnosed disability with no compensable symptoms as contemplated by the assigned non-compensable evaluation. The Board reviewed the Veteran’s records and determined that they do not support the assignment of an initial compensable evaluation for hypertension. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. 2. Entitlement to an increased evaluation in excess of 10 percent prior to December 23, 2019 for degenerative arthritis of the lumbar spine. At the outset it is noted that the Veteran has a separate rating assigned for radiculopathy and that is not at issue herein. In a February 2011 VA examination, the examiner diagnosed the Veteran with degenerate arthritis of the lumbar spine. Flexion was noted at 100 degrees with extension noted at 12 degrees with pain on flexion motion noted at 85 degrees and 20 degrees on extension. Repetitive motion flexion was noted at 92 degrees with extension noted at 22 degrees. Concerning functional and occupational limitations, the examiner noted that the Veteran’s lower back pain causes impairment during activities such as bending, lifting, and prolonged driving. A September 2019 private treatment x-ray findings reveals mild degenerative changes of the lumbar spine with disc narrowing with no instability noted. The examiner diagnosed the Veteran with lumbar spondylosis. In a June 2015 VA back examination, the examiner diagnosed the Veteran with degenerative arthritis lumbar spine with radiculopathy right lower extremity. During the examination, the Veteran reported flare-ups which made it more difficult to bend over or lift heavy objects. Flexion was noted at 70 percent with objective evidence of painful motion noted at 70 percent. Extension was noted at 20 percent with objective evidence of painful motion noted at 20 percent. Repetitive range of motion testing revealed flexion at 70 percent with extension noted at 20 percent. Pain on movement was noted with no evidence of swelling, instability, or fatigability. Pain on palpitation was diagnosed with localized tenderness noted in the bilateral lower lumbar area. Guarding with muscle spasms was noted with no evidence of muscle atrophy. The Veteran was also diagnosed as negative for IVDS. Concerning functional and occupational limitations, the examiner noted that the Veteran’s lower back pain impacts the Veteran’s ability to perform work task that require repetitive bending, lifting, and stooping. The Board also reviewed the Veteran’s lay statements reporting that the severity of his lumbar spine disorders warrants an increased rating in excess of 10 percent. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the severity of a lumbar spine disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2020). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Review of the record does not provide a basis for granting and increased rating in excess of 10 for degenerative arthritis of the lumbar spine prior to December 23, 2019. The objective findings do not reveal forward thoracolumbar flexion greater than 30 degrees, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board has determined that the severity, frequent, and duration of the Veteran’s lumbar spine disorder more closely approximates forward thoracolumbar flexion that is greater than 60 degrees, but not greater than 85 degrees as contemplated by the assigned 10 percent evaluation prior to December 23, 2019. The Board does note that guarding and muscle spasms were diagnosed, but the severity, frequency, and duration of the Veteran’s muscle spasms and guarding did not result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Thus, the severity of the Veteran’s lumbar spine disorder more approximates the maintaining of a 10 percent rating. The Board reviewed the Veteran’s records and determined that they do not support an increased disability rating in excess of 10 percent for this disorder. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. 3. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service connected lumbar spine disorder. The Veteran contends, at least in part, that his cervical spine disorder is secondary to his service connected lower back disorder. The Veteran’s STRs do not reveal any complaints diagnosis, or treatments for a cervical spine disorder in-service. In a May 2009 VA general examination, the Veteran’s cervical spine was diagnosed as normal with no significant findings. In a September 2011 VA general examination, the Veteran’s cervical spine was diagnosed as normal with no significant findings. March 2013 private MRI findings reveal mild to severe foraminal stenosis of the cervical spine. Private orthopedic treatment records from December 2014 to April 2015 reveal that the Veteran regularly underwent treatment for his cervical spine disorder. Private treatment records reveal that the Veteran was diagnosed with degenerative joint disease and degenerative disc disease of the cervical spine. The Veteran underwent a cervical diskectomy and fusion in March 2015. In a July 2017 VA cervical spine conditions examination, the examiner diagnosed the Veteran with degenerative joint disease and degenerative disc disease of the cervical spine. The examiner opined that the Veteran’s cervical spine disorder was less likely than not proximately due to or the result of the Veteran’s service connected lumbar spine disorder. The examiner explained that osteoarthritis in the lumbar spine cannot spread to, or cause osteoarthritis in the cervical spine. The examiner also explained that the osteoarthritis degenerative process is individual to each joint and can be affected by multiple factors including genetic predisposition, smoking, and lifestyle choices. In a December 2018 private examiner opinion, the examiner opined that more likely than not the Veteran’s cervical spine disorder is secondary to his service connected right hip and lumbar spine disorders. The examiner submitted medical literature and explained that the Veteran’s longstanding problems with his right hip and lumbar spine resulted in an altered gait which over time led to extra stress placed upon the Veteran’s cervical spine. In a December 2019 VA neck conditions examination, the examiner diagnosed the Veteran with degenerative arthritis of the cervical spine. The examiner opined that it is less likely that the onset of the Veteran’s cervical spine disorder is related to his miliary service. The Veteran explained that as lumbar spine disorder does not result in the onset of a cervical spine disorder. The examiner opined that due to independent anatomic, and neurologic entities, it is less likely than not that the Veteran has a current lumbar disorder etiologically related to the onset of his cervical spine disorder. The examiner also opined that due to the absence of documented evidence of specific onset of in-service trauma symptoms, it is less likely that the onset of the Veteran’s cervical spine disorder is related to military service. The examiner noted that cervical spine disorder did not result in a lumbar spine disorder due to independent neuroanatomy. To summarize, the Veteran’s STRs do not reveal any complaints diagnosis, or treatments for a cervical spine disorder in-service, nor for many years post-service. See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). The Board acknowledges the December 2018 private examiner opinion, which opines a positive nexus between the Veteran’s cervical spine disorder and his service connected right hip and lower back disorder. When evaluating medical opinions, it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran’s claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The basis of the December 2018 examiners opinion focused on medical literature which supported a finding between the Veteran’s longstanding problems with his right hip and lumbar spine. This resulted in an altered gait, and over time led to extra stress placed upon the Veteran’s cervical spine. However, there is no evidence that the private examiner reviewed the evidence of the full medical record which is absent for in-service treatment for a cervical spine disorder. Furthermore, the private examiner did not address the conflicting July 2017 VA examiner opinion which opined that osteoarthritis in the lumbar spine cannot spread to, or cause osteoarthritis in the cervical spine. Lastly, the private examiner did not discuss the VA examiners findings that osteoarthritis is a degenerative process which is individual to each joint and can be affected by multiple factors including genetic predisposition, smoking, and lifestyle choices. Therefore, the foregoing summary of the treatment record reveals no possibility for service connection for a cervical spine disorder on a secondary basis. Although the Veteran contends that his cervical spine disorder is related to his service connected right hip and lumbar spine disorder, the more persuasive evidence is that there is no relationship between the service connected disorders and the onset of cervical spinal pathology. Furthermore, the Board acknowledges the Veteran most recent December 2019 VA medical opinion. The examiner explained that a lumbar spine disorder does not result in the onset of a cervical spine disorder, due to independent anatomic, and neurologic entities. The examiner also opined that due to the absence of documented evidence of in-service cervical spine trauma symptoms, it is less likely than not that the onset of the Veteran’s cervical spine disorder is related to military service. The examiner determined that the onset of the Veteran’s cervical spine disorder is not related to his service connected lumbar spine disorder because both disorders have and independent neuroanatomy. As there is not a significant documented correlation between the Veteran’s cervical spine disorder and his service connected lumbar spine and right hip disorder, the Board finds that the Veteran’s cervical spine disorder is less likely than not related to his service connected lumbar spine and right hip disorder. The Board also reviewed the Veteran’s lay statements that the onset of his cervical spine disorder was caused by his service connected lumbar spine disorder. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a cervical spine disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a pathology for the onset of a cervical spine disorder has not been shown to be related to the Veteran’s service connected lumbar spine or right hip disorder, the Board concludes that the clinical evidence does not support the Veteran’s contentions for a granting of service connection on a secondary basis. Moreover, cervical spinal pathology was not shown in service, and any arthritis was first shown years post-service. As such, there is no basis for primary or presumptive service connection. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2020). REASONS FOR REMAND Entitlement to an increased rating in excess of 20 percent for a low back disorder after December 23, 2019. In affidavits and argument submitted recently, the Veteran and his representative have argued that the low back disorder is significantly worse that it was at the time of the December 2019 examination. Specifically, the Veteran alleges increased stiffness and loss of motion. He reported increased difficulty bending over making it difficult to put on shoes and socks. In view of these specific contentions, the Board concludes that additional examination is indicated prior to entry of an appellate decision on this matter. Further, as it is unclear whether the Veteran continues to receive regular treatment for his back, he will be offered the opportunity to identify and provide additional evidence if he so desires, and if it exists. VA will assist in obtaining any pertinent evidence in accordance with applicable procedures. In view of the foregoing this matter is REMANDED for the following actions: 1. With the Veteran’s assistance as necessary, identify and attempt to obtain any outstanding pertinent records of recent low back treatment. If private records are identified, release forms should be requested. If VA treatment is identified, pertinent records should be requested. All attempts to obtain records should be documented in the claims folder. 2. After the foregoing, but whether or not records are obtained arrange for a VA examination of the Veteran’s low back by a qualified examiner. All indicated tests should be accomplished and all findings reported in detail. The claims folder must be made available to the examiner and must be reviewed in conjunction with the examination. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.