Citation Nr: 22014491 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-38 138 DATE: March 14, 2022 REMANDED Entitlement to an increased rating for lumbosacral strain; lumbar spine degenerative changes (back disability) currently evaluated as 20 percent disabling, to include restoration of a 40 percent rating, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1975 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran appeared and testified before the undersigned Veterans Law Judge in a Virtual Hearing. A transcript of this hearing has been reviewed and is associated with the Veteran's claims file. Entitlement to an increased rating for lumbosacral strain; lumbar spine degenerative changes (back disability), to include restoration of a 40 percent rating, is remanded In an October 2018 rating decision, the RO reduced the disability rating from 40 percent to 20 percent for the Veteran's lumbosacral strain; lumbar spine degenerative changes effective January 1, 2019. In December 2018, the Veteran filed a notice of disagreement (NOD) with that rating reduction. The RO then issued a November 2019 Statement of the Case (SOC) as it relates to the Veteran's rating reduction and increased rating claim for his lumbar spine disability. Since then, additional relevant VA records have been associated with the claims file, namely a January 2020 treatment record from the Daytona Beach OPC, but these have not yet been reviewed by the Agency of Original Jurisdiction (AOJ). Further, there is no waiver of AOJ consideration of these new evidence. Accordingly, a remand is required for the AOJ to review the new evidence in the first instance and issue a Supplemental Statement of the Case (SSOC) for any claim not granted in full. See 38 C.F.R. § §§ 19.31, 19.37(a). Additionally, the Board is of the opinion that a new VA examination would be probative in ascertaining the current severity of the Veteran's back disability. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. 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).] 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). 3. Review all relevant evidence that has been associated with the Veteran's claims file since the issuance of the November 2019 SOC, including the January 2020 treatment records from Daytona Beach OPC. Readjudicate the Veteran's claim for an increased rating to include reduction of a 40 percent rating for his lumbar spine disability and if the claim is not granted in full, furnish the Veteran and his representative an SSOC. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.