Citation Nr: 21039750
Decision Date: 07/01/21	Archive Date: 07/01/21

DOCKET NO. 20-06 621
DATE:  July 1, 2021

REMANDED

Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine with Intervertebral disc syndrome (IVDS) is remanded.

REASONS FOR REMAND

The Veteran had active military service in the Unites States Marine Corps from October 1959 to July 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office. 

In the Veteran's February 2020 VA Form 9, he elected to have a hearing before the Board via video-conference. After certification of this appeal to the Board, the Veteran submitted a March 2021 written waiver of his right to a hearing, requesting the cancellation of any hearing being scheduled. The Board has accepted the Veteran's written request as a waiver of his right to a hearing, and finds that the matter is now ripe for appellate action. 

Increased Rating  Degenerative Arthritis of the Spine with IVDS

The Veteran was last afforded a VA examination to ascertain the severity of his service-connected degenerative arthritis of the spine with IVDS in March 2018. The Board finds that this examination is too remote to provide a current disability picture of the severity of the Veteran's condition. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). 

It is further noted that more recent VA treatment records reflect a possible progression of the Veteran's disability, with references made to recent pain management physicians visits and a possible discussion of surgical intervention. See April 2021, VA Treatment Records. Therefore, the Board finds it necessary to obtain a new VA examination, and accordingly, this matter must be remanded for further development.

This matter is REMANDED for the following action:

1. Obtain any outstanding VA or private treatment records and associate them with the Veteran's claims file. 

2. Then, schedule the Veteran for an examination by an appropriate clinician to evaluate the severity of his spine disability. The examiner is requested to review all pertinent records associated with the claims file. All appropriate studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file and examination of the Veteran, 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.

3. Confirm that the VA examination report comports with this remand and undertake any other development found to be warranted.

4. Then, readjudicate the appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board.

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Sutherell, 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.