Citation Nr: 21014001 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-08 714 DATE: March 11, 2021 REMANDED The claim of entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to March 1992. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a February 2021 teleconference hearing. The claim of entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. It is the Veteran’ contention that his back disorder has worsened since he was last examined in 2017. He testified in 2021 that he had significant limitation of motion in the low back. He experienced back pain and spasms on a daily basis. His gait was abnormal, and he had difficulty ambulating or siting down for any length of time. See 38 C.F.R. § 3.159(c)(4)(i) (2020); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). In support of his claim, his academic advisor and his professor ath the Oregon Institute of Technology submitted a statement in 2021 attesting to the fact that the Veteran struggled with back pain while attending college. Also added to the file was a statement by the Veteran’s private chiropractor who had seen him for treatment for 20 years. He added that current radiographs from 2020 revealed marked progression of the degenerative disc process. Range of motion (ROM) in February 2021 was significantly limited. He recommended that the Veteran’s back condition be reevaluated in regard to his disability rating. The Board notes that for increased rating musculoskeletal claims, VA examiners are required to include joint testing for pain on active and passive motion and in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2020). Additionally, for increased rating musculoskeletal claims, VA examiners should obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to repeated use over time and/or flare-ups. If the examination was not conducted after repeated use over time or during a flare-up, the examiner should provide an opinion based on estimates derived from this information from the veteran as to the additional loss of range of motion that may be present. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Moreover, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed Reg. 8142, 8143 (Feb. 4, 2020) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Additional examinations would be helpful to determine the severity of the disorders and to ensure that in the future, the Board has all information needed to properly rate the Veteran’s low back under the old and revised rating criteria, where appropriate. For these reasons, a contemporaneous examination is warranted. 38 C.F.R. § 3.159 (2020). The matter is REMANDED for the following action: 1. Obtain all updated relevant treatment records (private and VA) and associate them with the claim file. 2. The Veteran should also be scheduled for appropriate VA examination of the spine. The contents of the electronic claim file, to include a complete copy of this remand must be made available to and reviewed by the examiner. 3. Thoracolumbar spine with (separately service-connected radiculopathy of the left lower extremity (LLE): The examiner should conduct ROM testing (expressed in degrees) on both active motion and passive motion, and in both weight-bearing and non-weight bearing (as appropriate). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which motion-limiting pain begins. Also, the examiner should describe the frequency, duration, characteristics, severity, and functional loss during flare-ups. If the Veteran is not examined during a flare up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also clearly identify the presence and extent of any ankylosis, and state whether any such ankylosis is favorable or unfavorable. Further, the examiner should identify and comment on the existence, frequency, or extent of, as appropriate, any neurological manifestation(s) of lumbar disability, to include radiculopathy of the LLE and provide an assessment of each such manifestation as mild, moderate, moderately severe, or severe. Also, considering all neurological and orthopedic findings, the examiner should render findings particularly responsive to the criteria for rating intervertebral disc syndrome (IVDS). Specifically, comment as to the existence and frequency of any of the Veteran’s incapacitating episodes (i.e. a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months. All clinical findings should be reported in detail with complete, clearly stated rationale for the conclusions reached. (Continued on next page)   4. If upon completion of the above the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.