Citation Nr: 21020770 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-17 889 DATE: April 8, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for chronic back strain is remanded. REASONS FOR REMAND The Veteran on active duty in the United States Marine Corps from October 2005 to October 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by a VA Regional Office (RO). The Veteran appeared before the undersigned at a teleconference Board hearing in February 2021. A transcript of this hearing has been added to the claims file and reviewed. By way of background, in a June 2016 rating decision, the RO increased the Veteran's initial disability rating for chronic back strain from 10 percent to 20 percent, effective June 2, 2016. This increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Entitlement to a disability rating in excess of 10 percent for chronic back strain is remanded. The Veteran was last afforded a VA examination for his service-connected chronic back strain in June 2016. At the recent Board hearing in February 2021, the Veteran testified that his back condition has progressively gotten worse since his last VA examination, which was conducted nearly five years ago. Specifically, the Veteran testified that his symptoms now include incapacitating episodes that may last two to three days and occasionally up to one week, based on his level of activity. See Hearing P. 3,4. In addition, the Veteran’s representative also asserted that the last VA examination conducted in June 2016 was stale and otherwise not indicative of the current severity of the Veteran’s chronic back strain. Therefore, the Board finds that the Veteran should be afforded a new VA examination with a medical opinion to determine the current severity of his chronic back strain. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Further, a VA examination is warranted to address the functional limitations due to pain and/or during flare-ups of symptoms. See February 2021 Hearing P. 6, in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Additionally, the Veteran has indicated throughout the appeal period that he has undergone treatment with a private chiropractor for his chronic back strain. These records are potentially relevant to assessing the severity of the Veteran's low back disability throughout the appeal period, but they are not associated with the claims file. As such, at the February 2021 Board hearing, the undersigned held the record open thirty days for the Veteran and his representative to submit said records. At the time of this decision however, no such records have been submitted. Nonetheless, now that the claims before the Board will be remanded for further development, the RO should afford the Veteran an additional opportunity to submit those private treatment records for consideration. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his low back disability that is not already of record, including any records from his private chiropractor. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. After records are obtained, to the extent possible, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran's service-connected low back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.