Citation Nr: 21040763 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 10-26 136 DATE: July 6, 2021 REMANDED Entitlement to an increased rating greater than 20 percent disabling for intervertebral disc syndrome (IVDS) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1969 to January 1973 and in the United States Army from September 1981 to June 1998. This cased before the Board of Veterans' Appeals (Board) on appeal from a May 2008 Department of Veterans' Affairs (VA) Regional Office, the Agency of Original Jurisdiction (AOJ) rating decision. The Veteran was assigned a temporary 100 percent rating for convalescence after his September 27, 2007 lumbar laminectomy surgery per 38 C.F.R. § 4.30. This temporary rating is reassessed by law following at the end of the convalescence period. This convalescence period ended December 31, 2007 for the Veteran. A January 2008 rating decision assigned a 20 disabling rating. The Veteran objected to the initial 20 percent rating and was afforded a VA examination in March 2008. Based on the March 2008 VA examination, the AOJ issued a May 2008 rating decision affirmed the 20 percent rating evaluation and aforementioned effective date. As such, the Veteran appeals the 20 percent rating for his IVDS, effective January 1, 2008. The Veteran testified at an October 2012 board hearing. A transcript of that hearing is of record. However, the Veteran's Law Judge (VLJ) who conducted the hearing is no longer employed at the Board. The Veteran was notified of his right to another hearing. The Veteran declined this option. This matter was previously before the Board in October 2013, August 2016, and March 2017. In each case, a remand was necessary to address the Veteran's contentions of worsening and/or new evidence. Similarly, the Board finds that a remand is necessary to evaluate the Veteran's contentions that his back disability has worsened in the four years since his VA last examination. Entitlement to an increased rating greater than 20 percent disabling for intervertebral disc syndrome (IVDS) The Veteran contends that his IVDS is worse than this current 20 percent rating and that it has gotten worse since his April 2017 VA examination and requests a new examination. See May 2021 IHP. The Veteran points out that his last VA examination was conducted nearly four years ago. He also contends that his disability has significantly progressed since his last VA examination in April 2017. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the April 2017 VA examination is adequate, the Veteran's IHP suggests that the disability has become more severe. The VA is tasked with a duty to assist; this duty includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. When a veteran reports a worsening of symptoms and the available evidence is too old to adequately evaluate the current state of his condition a new exam is necessary. Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). On remand, the AOJ is instructed to afford the Veteran a new VA examination to determine the current severity of his IVDS. The Board also notes that the Veteran submitted additional private treatment records demonstrating that the Veteran underwent surgery for his spine on July 30, 2014 to alleviate symptoms of his service connected lumbar spine disorder. It appears that that AOJ has not sufficiently addressed whether the Veteran qualifies for a higher rating based on this evidence, to include a temporary convalescence rating under 38 C.F.R. § 4.30. As such, the AOJ should address this issue on remand. The Board notes that there was an update to the general rating criteria in February 7, 2021. The Board reminds the AOJ that the Veteran's condition is to be considered under both criteria for the appropriate time periods as the appeal spans the change. Pertinent in this case, the diagnostic codes for the General Rating Formula for Diseases and Injuries of the Spine were changed, including diagnostic code 5242 and 5243. As such, the Veteran should be reviewed under both diagnostic codes (and all other appropriate codes for this disability of the lumbar spine) to determine the most appropriate code for any period(s), including ones that may grant a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran has received for his lower back disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development has been complete, schedule the Veteran for an examination to determine the current severity of his lower back disability, to include IVDS. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should provide a complete rationale and a discussion of the facts and medical principles involved for all opinions. The examiner is asked to identify any acute signs and symptoms due to IVDS that resulted in physician prescribed bed rest since the April 2017 VA examination. The examiner's attention is also drawn to the Veteran's 2019 physical therapy assessments. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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 clinician (does not have the knowledge or training). 3. After the above has been completed to the extent possible, the AOJ is to readjudicate the claim. The AOJ's attention is directed to the evidence that the Veteran underwent back surgery on July 30, 2014. The AOJ should consider and apply any temporary and permanent rating changes based on this. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. This case should be expedited Signature on the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.