Citation Nr: 22014758 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 16-24 351 DATE: March 15, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for a lumbar spine degenerative disc disease is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. INTRODUCTION The Veteran served on active duty in the United States Air Force from September 2002 to September 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2021, the Veteran at a hearing before a Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Veterans Law Judge who conducted the hearing is no longer employed at the Board. The Veteran was notified of this in a January 2022 letter and offered the opportunity to request a new hearing. The Veteran elected to proceed without a new hearing. As such, the Board finds the VA has fulfilled its duty in providing the Veteran an opportunity for another hearing. REASONS FOR REMAND The Board is of the opinion that additional development is required before the claims on appeal are decided. Initially, the Board notes that during her October 2021 Board hearing the Veteran asserted her lumbar spine disability and left lower extremity radiculopathy are worse than currently evaluated. The Veteran was afforded a VA examination to assess the severity of her service-connected lumbar spine disability and lower extremity radiculopathy in July 2016. In addition to her testimony before the Board, the Veteran also submitted a statement from her spouse describing her daily limitations due to her constant back pain. She also submitted private medical treatment records to support her contention that her service-connected lumbar spine disability and lower extremity radiculopathy have worsened since her last VA examination. As such, a contemporaneous VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In consideration of the foregoing, the Board finds a remand is required to afford the Veteran a VA examination to determine the current severity of her service-connected lumbar spine disability and lower extremity radiculopathy. Accordingly, this matter is REMANDED for the following action: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected lumbar spine disability and left lower extremity radiculopathy. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flare-ups, and if possible, in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he or she should be directed to clearly explain why that is so. Also, obtain retrospective opinions from the VA examiner, regarding the severity of the Veteran's service-connected lumbar spine disability and left lower extremity radiculopathy throughout the pendency of the appeal. In particular, the examiner is asked to state the following: a) whether the Veteran's flare-ups have resulted in functional loss of the lumbar spine or left lower extremity at any time since August 2014, and if so, the examiner is asked to express that loss in terms of degrees of motion lost due to such factors as pain, weakness, fatigability, incoordination; b) whether the Veteran has experienced functional loss of the left knee and/or lumbar spine in weight-bearing, non weight-bearing, or passive motion at any time since August 2014, and if so, the examiner is asked to express that loss in terms of degrees of motion lost due to such factors as pain, weakness, fatigability, incoordination; and c) whether the Veteran has experienced functional ankylosis of the lumbar spine at any time since August 2014. In this respect, the examiner is advised that for VA compensation purposes, the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. If the examiner determines such a retrospective opinion is not possible, or would be speculative, the examiner must state whether this 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. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.