Citation Nr: 21031498 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-04 355 DATE: May 24, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for low back strain with degenerative disc disease L5-S1 (back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1990 to July 1991. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal with two Bronze Stars and the Army Achievement Medal. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. During the course of the appeal, the Veteran was awarded service connection for left lower extremity radiculopathy, left and right lower extremity surgical scar, and erectile dysfunction secondary to his service connected back disability. As service connection has been granted for these issues, they have been separately evaluated per the instructions of the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Absent any argument or separate appeal for those issues, a separate claim under the Appeals Modernization Act (AMA) must be filed to initiate review of "downstream" elements such as the disability rating or effective date assigned, if the Veteran so wishes. As these issues were granted, the only issue before the Board is entitlement to an increased evaluation for a back disability. 1. Entitlement to an evaluation in excess of 20 percent for low back strain with degenerative disc disease L5-S1 (back disability) is remanded. The Veteran contends his back disability has worsened. He testified at his October 2020 hearing that his back disability affects his work, recreational activities, his sleep, and his personal relationship with his partner. The Veteran testified he had surgery for his back in January 2018. He reports that after surgery, he has some relief in his left leg, but he is consistently in pain, possibly worse than before his surgery. The Veteran last underwent a VA examination in April 2017, prior to his back surgery. The Board finds that the additional development regarding the severity of the Veteran's back disability is required. A new VA examination is warranted to evaluate the Veteran's current disability. Additionally, the Veteran's private records from S.H., where his surgery was performed, are not of record. The Veteran also testified he sees a private chiropractor and the records on file are from 2016 to 2017, there are no records post-surgery to present. The Veteran's private treatment records need to be requested, obtained, and associated with the file prior to obtaining a new VA examination. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding private medical records, specifically the private records from S.H. and private chiropractor records, not already of record in the claims file. 2. Upon receipt of the outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (Continued on next page) If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, Associate 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.