Citation Nr: 21016156 Decision Date: 03/20/21 Archive Date: 03/20/21 DOCKET NO. 17-51 922 DATE: March 20, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to August 28, 2018, and from October 1, 2018 for low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1990 to June 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board videoconference hearing before the undersigned. During the pendency of the appeal, in a November 2018 rating decision, the RO granted a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for the service-connected low back disability, effective August 28, 2018 to October 1, 2018. As this rating increase is not the maximum allowable for the entire period on appeal, the low back disability increased rating claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Nevertheless, as 100 percent constitutes the maximum award available, the period from August 28, 2018 to October 1, 2018 will not be further addressed and the Board’s discussion will focus on the period prior to August 28, 2018 and from October 1, 2018, of which the Veteran is rated at 20 percent pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Entitlement to a rating in excess of 20 percent prior to August 28, 2018, and from October 1, 2018 for low back disability is remanded. The Veteran was last provided a VA examination for his service-connected low back disability in February 2017. See March 2017 C&P Exam. Testimony from the March 2021 Board hearing indicates that a remand is warranted to obtain another VA examination to determine the current severity of the Veteran’s low back disability. Furthermore, a review of the record shows that an August 2018 private treatment record noted the Veteran’s worsening low back condition with persistent pain with numbness, sharp and stabbing, radiating into the bilateral lower extremities. See November 2018 Medical Treatment Record – Non-Government Facility. Due to the increased low back pain, the Veteran had undergone lumbar spine surgery later in August 2018. See id. Any outstanding treatment records should also be obtained on remand. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and private treatment records and associate the records with the claims file. 2. Thereafter, obtain a VA examination to evaluate the current severity of the Veteran’s low back disability. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed. (a) The examination must record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. If the low back cannot be tested on weight-bearing, then the examiner should indicate why such testing cannot be done. (b) The examiner must also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use and during flare-ups in terms of the degree of additional range of motion loss. The examiner should obtain a detailed clinical history from the Veteran as to any functional loss or impairment during flare-ups. If this is not feasible to determine without resort to speculation, the examiner should provide an explanation for why this is so. (Continued on the next page)   (c) Any necessary testing should be undertaken to determine if the Veteran has radiculopathy related to his back disability. (d) The examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran’s low back disability has on his occupational functioning, and whether or not his low back disability impacts his ability to perform ordinary activities of daily living. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.