Citation Nr: 22017534 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-09 409 DATE: March 25, 2022 REMANDED Entitlement to an increased rating for lumbar spine strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1980 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 decision, the Board denied increased a rating in excess of 10 percent prior to April 17, 2017, and granted a 20 percent rating, but no higher, thereafter for the Veteran's lumbar strain disability. The Veteran appealed the Board's 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 memorandum decision, the Court remanded the claim for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. Entitlement to an increased rating for lumbar spine strain is remanded. In the September 2021 memorandum decision, the Court found that the Board erred in not seeking to obtain adequately identified private treatment records. As noted in the memorandum decision, the RO received a release for records from the Veteran for Coastal Complete Care Chiropractic, Dr. Sopt, and Dr. Schindler in April 2018. However, the evidence of record does not demonstrate that VA took any effort to submit an initial request for the records from each of those entities. The Court also found that the Board erred when it failed to obtain an adequate medical examination. The Veteran underwent VA examinations in April 2011, September 2012, and April 2018. However, the Court noted that the VA examinations of record did not address the Veteran's condition during a time of flare-up, and thus did not describe the Veteran's lumbar disability in sufficient detail. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36(2017). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Coastal Complete Care Chiropractic, Dr. Sopt, and Dr. Schindler. Make two requests for the authorized records from Coastal Complete Care Chiropractic, Dr. Sopt, and Dr. Schindler, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar strain. 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). Ian M. Hitchcock Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.