Citation Nr: 22011989
Decision Date: 03/02/22	Archive Date: 03/02/22

DOCKET NO. 18-55 158
DATE: March 2, 2022

REMANDED

Entitlement to a rating in excess of 10 percent for a low back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from August 1965 to April 1969. 

The Veteran passed away on December 30, 2020.  The Appellant is his surviving spouse, who has been properly substituted in the appeal.  The Board expresses its deep condolences to the Appellant for the loss of the late Veteran and expresses its sincere appreciation for his honorable service to this country.

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2020, and a copy of the hearing transcript has been associated with the claims file.  During the hearing, the Veteran testified that his back condition worsened since he underwent a September 2018 Back DBQ.  He further testified that his back bothered him all of the time and that he experiences right-sided numbness, sciatic nerve pain, and right leg pain.  He also testified that his back condition prevented prolonged sitting, walking, and standing.  He further reported that he used Ibuprofen for pain relief and used a prescribed back brace.  Also, the Veteran's representative stated that the 2018 VA examination was inadequate in that the examiner should have provided the Veteran with a retrospective opinion addressing the level of disability shown during the year.

In May 2020, the Board, in relevant part, remanded the claim of entitlement to a rating in excess of 10 percent for a low back disability.  

Pursuant to the Board's Remand, in a June 2020 letter, VA notified the Veteran that it requested an examination through a private medical facility to determine the current level of his back disability and that he would be notified of the date, time, and place of the examination.  An October 2020 "Claim Exam Enclosure" shows that no medical examination was currently scheduled for the Veteran's back.  And while an Exam Request shows that the Veteran was scheduled for a VA examination on December 17, 2020, it is unclear whether the Veteran was ever notified of the examination prior to his passing.  

The Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of the Veteran's service-connected back condition.

The matters are REMANDED for the following action:

1. Obtain a retrospective medical opinion based on review of the file regarding the level of severity of the Veteran's back disability. 

In evaluating the severity of the Veteran's back condition based on the file review, the examiner is asked to consider and specifically consider the following:

i.	The Veteran's lay history;

ii. The 2018 VA examination, in which the Veteran reported that he experienced increased back pain; flare-ups; stiffness; and an interference with prolonged sitting, standing, walking, and weight-bearing;

iii. The March 2020 hearing testimony, in which the Veteran testified that he experienced numbness and back/sciatic pain, wore a prescribed back brace, and had difficulty with prolonged standing, sitting, and lifting heavy objects. 

Any opinion expressed by the examiner should be accompanied by a complete rationale.  

If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized.  

If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

2. Re-adjudicate the claim.

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Hanson

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.