Citation Nr: 21024172 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-42 662 DATE: April 22, 2021 REMANDED The claim of entitlement to an initial rating greater than 10 percent for degenerative disc disease (DDD), lumbar spine, with intervertebral disc syndrome (IVDS), is remanded. The claim of entitlement to an initial rating greater than 10 percent for residuals, fractures, great and second toes, left foot, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 to May 2007. His claims come before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision, in which the Agency of Original Jurisdiction (AOJ) granted the Veteran service connection for low back and left foot disabilities and assigned initial 10 percent and 0 percent ratings, respectively. The Board remanded these claims to the AOJ in June 2011 for additional development. In an April 2017 Decision Review Officer decision, the AOJ increased the initial rating assigned the Veteran’s left foot disability to 10 percent. Also at that time, the RO granted a separate rating for radiculopathy, left lower extremity, and assigned an initial 10 percent rating, effective September 15, 2010, as secondary to the service connected low back disability. The Veteran did not appeal the rating or effective date of that disability and as such, it is not before the Board. Indeed, in correspondence received in May 2017, the Veteran continued to disagree with the 10 percent rating assigned specific to the DDD of the low back with IVDS. In April 2021, the Veteran testified in support of these claims during a virtual hearing held before the undersigned Veterans Law Judge. The transcript of this hearing is not yet available, but will be associated with the claims file during the normal course of business. Entitlement to an initial rating greater than 10 percent for degenerative disc disease, lumbar spine, with intervertebral disc syndrome Entitlement to an initial rating greater than 10 percent for residuals, fractures, great and second toes, left foot The Veteran seeks higher initial ratings for his low back and left foot disabilities. He underwent VA examinations of these disabilities in 2015, but during his hearing, he claimed that both disabilities had worsened since the examination, necessitating a new examination. In addition, since the last VA examination, the U.S. Court of Appeals for Veteran's Claims issued decisions pertaining to the adequacy of VA orthopedic examinations. Correia v. McDonald, 28 Vet. App. 158 (2016) (unless adequate explanation provided, examinations must include range of motion testing for pain on active and passive motion, weight-bearing and nonweight-bearing, and in relation to opposite undamaged joint); Sharp v. Shulkin, 29 Vet. App. 26 (2017) (examiners must obtain information from Veteran regarding severity, frequency, and duration of flare-ups, precipitating and alleviating factors and extent of functional impairment during flare-ups, and estimate additional loss of motion based, in part, on Veteran's statements). The 2015 VA examination reports do not comply with the requirements outlined in these decisions. Finally, during the course of this appeal, VA amended the criteria for rating musculoskeletal disabilities, effective from February 7, 2021. 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021). As the amendments are potentially applicable to the Veteran’s low back claim, their applicability must be considered. The matters are REMANDED for the following action: 1. Afford the Veteran VA back and lower extremity examinations to address the current severity of his lumbar spine and left foot disabilities and any associated neurologic involvement. The examiner should review all pertinent evidence, including the Veteran’s treatment records dated since 2007, VA examinations and written statements and hearing testimony. The examiner should record in detail the Veteran’s history of low back and left foot symptoms. The examiner must conduct all necessary testing, including active and passive range of motion and weight- and nonweight-bearing motion. If the examiner is unable to conduct such testing or finds such testing unnecessary, he or she should provide an explanation. The examiner must address the severity, frequency and duration of any low back and/or left foot flare-ups, identify their precipitating and alleviating factors, and, considering the Veteran’s description of the flare-ups, estimate the functional impairment, including any additional loss of motion, experienced when they occur. The examiner should identify all neurological abnormalities associated with the Veteran’s disabilities other than those involving his left lower extremity. The examiner should provide rationale for each opinion. 2. Readjudicate the Veteran’s claims, considering the applicability of VA's recently amended criteria for rating disabilities of the musculoskeletal system, see 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021), and whether any separate rating is assignable for additional neurologic involvement shown on examination. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.