Citation Nr: 21030633 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-00 141 DATE: May 19, 2021 REMANDED A higher rating in excess of 50 percent for low back pain with degenerative arthritis from December 1, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to October 1990. The case is on appeal from a September 2015 rating decision. In August 2019, the Board granted a 50 percent increase rating, but not higher, for service-connected low back pain with degenerative arthritis effective December 1, 2014. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, on the basis of an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's decision for further development and adjudication to determine whether an even higher rating in excess of 50 percent, from December 1, 2014, and whether separate ratings for neurologic abnormalities of the lower extremities are warranted. A higher rating in excess of 50 percent for low back pain with degenerative arthritis from December 1, 2014. The August 2020 JMPR states that the Board erred when it did not ensure that the provisions set forth in 38 U.S.C. § 5103A(a)(1), pertaining to the duty to assist the Veteran is entitled to, were met. In that regard, the parties agreed that "where the record does not adequately reveal the current state of the claimant's disability," as it is the case in the present claim, a new medical examination is required. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (quoting Caluza v. Brown, 7 Vet. App. 498, 505 (1995)). The parties agreed that here, following the September 2015 VA examination, the Veteran has not only indicated that his back disability has worsened, but that based on the Veteran's December 2016 statements, there appear to exist intervertebral disc syndrome (IVDS) with neurological manifestations of his lumbar spine disability in both lower extremities which have not been properly addressed by a medical professional, and which could potentially entitled him to separate ratings pursuant to the General Rating Formula for Diseases and Injuries of the Spine as set forth in 38 C.F.R. § 4.71a. The Board notes that the Veteran was last afforded a VA examination in connection with his claim in September 2015. The examination report indicates that the Veteran does not have IVDS nor radiculopathy. Nevertheless, the VA examiner noted that no imaging studies of the thoracolumbar spine were performed during the examination. Moreover, there is no medical evidence referenced in the report from which one could infer that the examiner relied on to conclude that the Veteran does not have IVDS or neurological complications. Upon consideration of the Veteran's statements suggesting an increase in severity of his back disability, to include the onset of neurologic manifestations in both lower extremities, and the fact that his last VA examination was afforded in September 2015, the Boards finds that a remand is warranted for a contemporaneous VA examination to determine the severity of the Veteran's low back disability in compliance with the August 2020 JMPR. See Palczewski, 21 Vet. App. 181; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain any updated and/or outstanding VA treatment records. 2. Request from the Veteran, and assist in obtaining, any updated and/or outstanding private medical records in connection with this claim. 3. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to provide an opinion as to the severity of the Veteran's low back disability and associated symptoms from December 1, 2014. The examiner is also asked to determine whether the Veteran has IVDS and/or a current neurologic disorder of the lower extremities, to include radiculopathy. In doing so, the examiner must conduct all necessary testing, to include any imaging studies. Consideration should be given to the Veteran's December 2016 statements indicating a worsening of his low back disability and the existence of neurologic manifestations in both lower extremities. A complete rationale or explanation should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.