Citation Nr: 21030691 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-20 634 DATE: May 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent disabling for lumbar spine disability is remanded. Entitlement to an effective date earlier than October 12, 2015, for the assignment of a compensable rating for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1984 to August 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2021, the Veteran testified at a virtual Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 30 days for the Veteran to submit additional relevant evidence. Lumbar Spine Disability The Veteran seeks an increased rating for his lumbar spine disability. The Veteran additionally seeks entitlement to an effective date earlier than October 12, 2015, for the assignment of a compensable rating. Specifically, the Veteran asserts that the 10 percent rating should be effective since his separation from service in 1998. See February 2016 NOD, April 2017 VA Form 9, Substantive Appeal, and March 2021 Board Hearing Transcript. At the March 2021 Board hearing, the Veteran reported receiving regular care for his lumbar spine disability through his local VA medical center. In addition, he testified that he experienced intermittent shooting pain into his left leg. He further reported missing work and utilizing the Family and Medical Leave Act (FMLA) due to his back pain. In March 2021, the Veteran submitted FMLA records showing authorization for utilizing leave due to low back pain from March 2019 through March 2020, and from February 2020 through February 2021. Initially, the Board notes that the most recent VA medical record associated with the claims file is dated in January 2017. Accordingly, in order to properly adjudicate this issue on appeal, efforts should be made to obtain and associate with the claims file updated VA medical records. Additionally, a review of the most recent January 2017 VA lumbar spine examination shows that the condition was not found manifested by radiculopathy. However, as noted above, the Veteran recently reported symptoms during the March 2021 Board hearing that may be attributable to radiculopathy. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Given the Veteran's assertion that his lumbar spine disability had worsened since his last VA examination, including symptoms potentially attributable to radiculopathy, and recently added FMLA records evidencing that he has requested absences from work due to his lumbar spine disability, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, including all records dating from January 2017 to the present, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected lumbar spine disability, to include any associated radiculopathy or other neurological impairment. 3. Then, the AOJ must readjudicate the remaining issues on appeal, to include the claim for an earlier effective date. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.