Citation Nr: 21022082 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-24 020A DATE: April 14, 2021 REMANDED Entitlement to a rating higher than 20 percent for herniated nucleus pulposus, L4 & L5 with degenerative disc disease (lumbar spine disability herein) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1986 to June 1989. This appeal stems from an August 2014 rating decision that increased the Veteran’s lumbar spine disability to 20 percent, effective July 25, 2013. In February 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. A remand is necessary to provide the Veteran with a new VA examination to help determine the current severity of the lumbar spine disability and to obtain identified private treatment records. The Veteran was last provided with a VA examination in August 2014. During the 2021 hearing, he testified that his disability has worsened in severity. Accordingly, the Veteran should be scheduled for a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, during the hearing the Veteran reported undergoing private treatment for his back; however, although the Board left the record open to provide the Veteran with an opportunity to submit the identified records, no additional evidence was received. On remand, the Bord will attempt to secure any outstanding, identified private medical records. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Provide the Veteran with VA Forms 21-4142, Authorization and Consent to Release Information to the VA, and ask him to identify any private medical records not already of record that show treatment for his lumbar spine disability. Also advise him that he may submit any outstanding relevant records he has in his possession, if he so chooses. 3. Then, provide the Veteran with a VA examination to help identify the current severity of the lumbar spine disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the lumbar spine disability throughout the pendency of the appeal from July 2013, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. 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. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. (Continued on the next page)   **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 4. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.