Citation Nr: 21042641 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-02 582 DATE: July 13, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for low back strain with lumbar degenerative disc disease for the period prior to August 27, 2017, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a disability rating in excess of 10 percent for low back strain with lumbar degenerative disc disease for the period prior to August 27, 2017, and in excess of 20 percent thereafter The Veteran seeks entitlement to a disability evaluation in excess of 10 percent for his lumbar disability for the period prior to August 27, 2017, and in excess of 20 percent thereafter. During the course of the appeal, this rating was increased to 20 percent, effective August 27, 2017. Both periods are currently on appeal. Although the Board regrets the delay, a remand is required to fully adjudicate the Veteran's claim. The Veteran last underwent a VA examination of his lumbar disability in August 2016, almost 5 years ago. Normally the mere passage of time would not warrant a new examination; however, where there is a suggestion of worsening, as is the case here, a new examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). The record reflects that a VA back examination was scheduled in December 2018 but in November 2018, VA received notification that the Veteran refused the examination. However, the Veteran indicated that he did not know the scheduled appointment was for a VA examination, rather than physical therapy. Any doubt in this matter is resolved in the Veteran's favor. However, the Board advises that the Veteran has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Since the August 2016 VA examination, the Veteran's VA treatment records reflect an assessment of bilateral radiculopathy. See July 2017 VA Treatment Record. The Veteran also reported that he has a slanted gait due to his lumbar disability, that he has difficulty bending and squatting, and that his wife has to help him with socks and shoes. See October 2017 Notice of Disagreement. The Veteran should be provided another opportunity to report for a VA examination to ascertain the current severity and manifestations of his lumbar disability. Additionally, it appears that relevant private treatment records identified by the Veteran in the VA treatment records. Specifically, the Veteran reported treatment by a private orthopedic surgeon, Dr. G., and a July 2018 VA treatment record shows that the Veteran's VA physician gave the Veteran a copy of lumbar spine MRI results to take to Dr. G. However, Dr. G.'s private treatment records are not of record. A remand is required to allow VA to obtain authorization to request these records. Lastly, the Board notes that the most recent VA treatment records of record are dated in August 2018. On remand, any missing relevant VA medical records must be obtained and associated with the claims file. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file, in particular those dated from August 2018 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit copies. 3. After the above development has been completed, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar disability. The record must be made available for review in connection with the examination. All indicated tests and studies should be undertaken and the examiner must record all pertinent medical complaints, symptoms, and clinical findings. (Continued on the next page) 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. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.