Citation Nr: 22013864
Decision Date: 03/10/22	Archive Date: 03/10/22

DOCKET NO. 19-28 868
DATE: March 10, 2022

REMANDED

Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from October 1974 to October 1976.  This matter comes before the Board from a May 2017 rating decision.  The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in October 2021. The transcript is in the record. 

1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded.

The Veteran testified at the October 2021 Board hearing that his lumbar spine condition had worsened since his last VA examination in July 2019.  The Veteran reported that his pain renders him virtually unable to function.  The Veteran reported that his condition now necessitates surgery and that he takes pain medication daily for the disability.  The Veteran indicated that he reported his inability to function at his most recent VA examination, however the examination report does not note functional loss due to pain.  The Veteran's statements regarding the extent of functionality lost due to pain should be addressed by the examiner. Further, the Veteran testified the severity of his radiculopathy has changed and that it now impacts both lower extremities.  

The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his back disability, including radiculopathy symptoms.

The matters are REMANDED for the following action:

Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability, including associated radiculopathy symptoms.  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). 

In so doing, 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.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  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).

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Rekowski

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.