Citation Nr: 22014595 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-47 122 DATE: March 14, 2022 REMANDED Entitlement to a rating higher than 20 percent for a back disability. Entitlement to an effective date earlier than December 12, 2016 for a 20 percent rating for a back disability. REASONS FOR REMAND The Veteran had active service to include the period from August 1989 to January 1992. The Board notes that the issues of higher ratings for right lower extremity radiculopathy of the sciatic nerve and femoral nerve are being addressed in a separate appeal stream under the Appeals Modernization Act (AMA) and are not in the Legacy System currently before the Board. Issues 1-2: Entitlement to a rating higher than 20 percent for a back disability; and entitlement to an effective date earlier than December 12, 2016 for a 20 percent rating for a back disability. The Veteran was last afforded a VA back examination in June 2017. During his April 2021 Board hearing the Veteran testified that his low back disability was increasing in severity preventing him from engaging in normal activities to include cooking and running a vacuum cleaner. The Veteran stated that he was experiencing flare-ups daily, his low back disability also was affecting his legs and that he has not worked since 2014. However, the Veteran's attorney confirmed that the Veteran did not wish at this time to raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that according to recent case law VA is obligated to identify, develop, and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level. See Wilson v. McDonough, No.19-3791 (Vet. App. January 26, 2022). In the instant case the Veteran during his April 2021 Board hearing complained of radiating pain to his legs. The rating criteria pertaining to a back disability encompass neurological impairment and thus Wilson v. McDonough is inapplicable in the instant case. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's back disability has been rated under Diagnostic Code 5243. As for Diagnostic Code 5243 for intervertebral disc syndrome, this diagnostic code now applies when there is disc herniation with compression and/or irritation adjacent to the nerve root, otherwise a rating is to be assigned for Diagnostic Code 5242 for all other disc diagnoses. Changes were made to Diagnostic Code 5242 noting that the code pertains to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. See 85 FR 76453, 76463, Nov. 30, 2020. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). The Veteran in April 2021 testified that in the past he has applied for benefits with the Social Security Administration (SSA). Thus, there may be pertinent outstanding medical records associated with SSA determinations and an attempt needs to be made to obtain them. Lastly, because a decision on the issue of a higher rating for the back disability could significantly impact a decision on the issue of an earlier effective date for a higher rating for that disability, the issues are inextricably intertwined. Remand of both claims is required. Harris v. Derwinski, 1 Vet. App. 180 (1991). By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. With the Veteran's assistance obtain any outstanding treatment records, VA or private. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Obtain all the Veteran's pertinent SSA records to include medical records used in deciding any claim for disability benefits. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected back disability. The examiner should provide a full description of the Veteran's service-connected back disability and report all signs and symptoms necessary for evaluating the Veteran's back disability under the rating criteria. a.) The examiner must test the Veteran's back movements that are painful on active use, passive use, in weight-bearing, and non-weight-bearing. To the extent possible the examiner also must estimate any additional functional loss caused by the Veteran's flare-ups. 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, 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), or a deficiency in the record (additional facts are required). b.) The examiner is asked to address all neurologic abnormalities associated with the Veteran's service-connected back disability other than radiculopathy of the right sciatic nerve and right femoral nerve. The examiner should identify all the nerves affected and determine whether the findings represent complete paralysis of each affected nerve or nerves; or, mild, or moderate, or moderately severe, or severe incomplete paralysis of each affected nerve or nerves. If there is overlapping symptomatology among multiple nerves, the examiner should to the extent possible identify the impaired nerve that is most analogous to the Veteran's symptoms. 4. The Agency of Original Jurisdiction (AOJ) should ensure that the examiner on the VA back examination provides all information required for rating purposes, under both the former and revised rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.