Citation Nr: 22018349 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-53 456 DATE: March 29, 2022 REMANDED Entitlement to an increased rating for a lumbar spine disability, rated 10 percent prior to February 25, 2019, and 20 percent as of February 25, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1973 to November 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The case is on appeal from a June 2016 rating decision. The June 2016 rating decision proposed to decrease the rating for a low back disability from 10 percent to 0 percent, and an August 2016 rating decision enacted that proposal, the rating was restored during the pendency of the appeal. Therefore, as that reduction has been restored, the Board will not address the propriety of the reduction. Entitlement to an increased rating for a low back disability is remanded. A February 2015 rating decision established service connection for a low back disability and assigned a 10 percent rating. In May 2016, the Veteran submitted an increased rating claim, and an August 2016 rating decision decreased the low back disability rating from 10 percent to 0 percent, effective June 5, 2016. The initial 10 percent rating was restored, effective June 5, 2016, by a December 2016 rating decision. Following an increased rating claim, a June 2019 rating decision increased the low back rating to 20 percent, effective February 25, 2019. A July 2020 rating decision continued the 20 percent rating following a June 2020 increased rating claim. The Board notes that because the Veteran perfected an appeal of the August 2016 rating decision, the decision did not become final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. While the January 2019 rating decision restored the initial 10 percent rating, the decision was not a full grant of the benefit sought on appeal. Therefore, the current appeal period before the Board begins on May 2, 2016, the date VA received the claim for an increased rating, and evidence within one year prior to that claim must also be reviewed to determine if there was a factually ascertainable increase in disability warranting a higher rating during that year. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The June 2018, May 2019, and July 2020 VA examiners found that there had been no episodes which required prescribed bedrest. However, in May 2018, a VA doctor noted back pain since 2005, with "frequent recurrence of lower back pain incapacitating episodes, lasting from several days up to 1-2 weeks, over 6 weeks in total in last 12 months..." A September 2019 emergency department record shows that the Veteran was instructed to "[r]est more than usual for...days" and to "limit [the] bed rest to 2 to 3 days to avoid weakening [his] muscles." The Board finds that the examination opinions are incomplete because the examiners did not address the May 2018 and September 2019 medical evidence. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is necessary for additional VA examination and opinion. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Then, schedule the Veteran for a VA examination to determine the severity of a service-connected low back disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Identify the current nature and severity of any manifestations of the low back disability and discuss the functional impairment resulting from the low back disability. The examiner should consider the Veteran's lay reports and testimony. (b.) Provide ranges of motion for passive and active motion, and for weight-bearing and non-weightbearing, of the thoracolumbar spine. The examiner should specifically indicate the degree at which the Veteran experiences pain on motion and whether there is any additional loss of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c.) Discuss whether, and to what extent, there is functional loss due to pain or any other symptoms during flare ups or with repeated use. It is most helpful if any additional loss is quantified in terms of limitation of motion during flare up. (d.) Note any incapacitating episodes associated with the low back disability. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The examiner should discuss the May 2018 and September 2019 medical records which discuss a prescription for bed rest. (e.) State whether or not ankylosis of the spine, or the functional limitation that is the equivalent of ankylosis, is shown. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.