Citation Nr: 21031111
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 17-41 158
DATE: May 20, 2021

REMANDED

Entitlement to a disability rating in excess of 10 percent prior to January 1, 2014, and in excess of 40 percent thereafter for lumbar strain, to include herniated disc, is remanded.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 10 percent prior to January 1, 14, 2020, and in excess of 40 percent thereafter for lumbar strain, to include herniated disc, is remanded.

The Veteran had active service in the Navy from August 2006 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied a claim for a disability rating in excess of 10 percent for a low back disability currently rated as lumbar strain, to include herniated disc. The Veteran timely initiated and perfected an appeal of the March 2016 rating decision. In March 2020 the RO granted the Veteran a disability rating of 40 percent for his low back disability, effective January 1, 2014. As the highest possible rating has not been assigned for the periods on appeal, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). 

The last Statement of the Case (SOC) was issued in June 2017 and the Veteran's claim was certified to the Board by Form 8 in September 2017. Since that time, additional evidence relating to the Veteran's increased rating claim has been added to the claims file; specifically, VA treatment records covering the period from June 2017 to March 2021. Where newly received evidence is pertinent to a claim on appeal, it must be considered in the first instance by the Agency of Original Jurisdiction (AOJ) unless the Veteran either waives this procedural right, or if the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.37, 20.1305. In April 2021 the Veteran informed VA, through counsel, that he did not waive consideration of this new evidence in the first instance by the AOJ, and that he wished to have his claim remanded accordingly. 

In light of the foregoing, the Board finds that the Veteran's claim for entitlement to a disability rating in excess of 10 percent prior to January 1, 2014, and in excess of 40 percent thereafter for lumbar strain, to include herniated disc, should be remanded to the AOJ for adjudication in light of all evidence received since the June 2017 SOC. Moreover, the Board finds that in light of the hearing testimony indicating worsening symptoms, an new examination should be conducted.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA orthopedic examination in order to ascertain the severity of his lumbar disability. It is imperative that the Virtual folders be reviewed in conjunction with the examination. All notices issued to the Veteran must be associated with the virtual folder. Any medically indicated special tests, including x-rays, should be accomplished, and all special test and clinical findings should be clearly reported.

Range of motion testing should be accomplished. The examiner must test and record the range of motion for in active motion, passive motion, weight-bearing, and nonweight-bearing, as applicable. 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 report functional impairment due to incoordination, weakened movement excess fatigability, pain or flare-ups, expressed in terms of additional degrees of lost motion. The examiner is advised that the Veteran is competent to report limitation during flare-ups.

The examiner should also indicate whether there is intervertebral disc syndrome, now defined under the revised criteria (effective February 7, 2021) as disc herniation with compression and/or irritation of the adjacent nerve root.

2. Thereafter, readjudicate the issues on appeal considering all evidence received since June 2017, to include updated VA treatment records covering the period from June 2017 to March 2021. If the benefits sought remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sametshaw, Eric C.

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.