Citation Nr: 21015286 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-35 673 DATE: March 17, 2021 REMANDED The issue of entitlement to increased disability ratings for chronic low back strain, currently assigned a 10 percent rating prior to November 6, 2019, and a 20 percent rating thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2000 to November 2003, and from November 2004 to November 2005. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2018. This case was previously before the Board in September 2018, when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. During the processing of the September 2018 Board remand, the AOJ issued a rating decision in March 2020 that partially granted the appeal by awarding an increased 20 percent rating for chronic low back strain effective from November 6, 2019. The Veteran maintains his appeal for further increased ratings. The case has now been returned to the Board for further appellate review. The Board notes that the Veteran currently has a separate appeal pending before the Board under the modernized review system, also known as the Appeals Modernization Act (AMA). That separate appeal will be addressed in a separate Board decision. The appeal addressed here in the current Board decision is before the Board in the legacy appeal system. 1. The issue of entitlement to increased disability ratings for chronic low back strain, currently assigned a 10 percent rating prior to November 6, 2019, and a 20 percent rating thereafter, is remanded. Additional significant evidence has been added to the claims-file after the most recent March 2020 supplemental statement of the case (SSOC). Some of this evidence was added before the AOJ returned the case to the Board in May 2020. An April 2020 sworn affidavit from the Veteran’s spouse discusses the Veteran’s “chronic low back pain,” and asserts that “his condition has worsened.” April 2020 VA treatment reports discuss concern regarding the Veteran’s “lower back pain that did not respond to gabapentin. He is very insistent on being seen by neurosurgeon….” Even with the benefit of recently prescribed gabapentin to reduce his worsening back pain, the Veteran’s low back pain reached levels prompting the Veteran to seek a neurosurgery consultation. This information, together with the April 2020 affidavit asserting that the disability “has worsened,” is pertinent information to the back disability rating issue on appeal. The pertinence of this information is made more clear in the context of the broader evidentiary record: an August 2020 Disability Benefits Questionnaire (DBQ) added to the record in September 2020 presents range of motion data, estimations of unobserved exacerbations, descriptions of flare-ups, and other information indicative of back disability significantly more severe than the impairment indicated in the clinical findings and other evidence considered by the most recent SSOC in this case. The August 2020 DBQ presents clear indications that the Veteran’s descriptions of his symptoms and clinical measurements of impairment had substantially worsened relative to the symptoms and measurements presented in the evidence considered in the AOJ’s adjudication assigning the current rating assignment. An important inquiry in this case features the need to determine -when- any entitlement to a further increased rating is first shown to have emerged. The April 2020 affidavit from the Veteran’s spouse (indicating a worsening of the back pain) and the April 2020 VA medical reports (documenting the Veteran seeking a neurosurgery consultation due to the severity of symptoms despite a new pain medication) are pertinent to this issue in combination with prior and subsequent evidence of record. No evidence added to the record after March 2020 has been considered by the AOJ’s most recent adjudication of the matter. The evidence from April 2020 was added to the record prior to the transfer of the case back to the Board in May 2020. The Board must remand the case back to the AOJ and has no discretion on the matter as the provisions of 38 C.F.R. § 19.31 require that the AOJ issue an SSOC if additional pertinent evidence is received and the case has not yet been certified and transferred to the Board for appeal. 38 C.F.R. § 19.31. Because the additional evidence pertains to the issue on appeal and is not merely duplicative of prior evidence, a remand is required to allow the AOJ opportunity to adjudicate this claim in light of the new evidence. 38 C.F.R. §§ 19.31, 19.37. The Board observes that the above-discussed August 2020 DBQ presents significant and detailed indications of impairment more severe than indicated in the evidence considered by the most recent SSOC in this case. During the processing of this remand, the AOJ shall now have the opportunity to review all of the new contents added to the claims-file after the SSOC and readjudicate the Veteran’s claim accordingly. The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. After the record is determined to be complete, and after completing any additional notification and/or development deemed warranted, readjudicate the issue on appeal with consideration of the complete updated contents of the evidentiary record, including the April 2020 affidavit from the Veteran’s spouse, VA medical records concerning the low back pain, and the August 2020 DBQ pertaining to the back disability. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case that considers all of the evidence added to the record since the last supplemental statement of the case (issued in March 2020), and afforded the appropriate time period for response. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.