Citation Nr: 23014156 Decision Date: 03/08/23 Archive Date: 03/08/23 DOCKET NO. 20-13 841 DATE: March 8, 2023 REMANDED Entitlement to a rating in excess of 10 percent for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record Entitlement to a higher rating in excess of 10 percent for a low back disability is remanded. The record contains a November 2018 VA examination report, provided to determine the severity of the Veteran's low back disability. In that report, the Veteran stated that he experienced radiculopathy of the right lower extremity related to a low back disability. However, the examiner stated that the record contained no medical evidence indicating radiculopathy symptomatology and, therefore, indicated that the Veteran did not have radiculopathy. In a subsequent VA treatment record, the Veteran reported experiencing radiculopathy symptoms to medical personnel. At the December 2021 Board hearing, the Veteran stated that he experienced both radiculopathy symptomatology and incapacitating episodes related to the low back disability. Because the record suggests that the Veteran's low back disability symptoms are worse than as depicted in the November 2018 VA medical examination report, and because of the amount of time that has elapsed since the November 2018 VA examination, remand is necessary to schedule an additional examination. At a December 2021 Board hearing, the Veteran reported receiving current VA treatment for the disability on appeal. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. Remand is required to associate those VA treatment records with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from December 2021 to the present. 2. Schedule the Veteran for a VA examination to determine the severity of a service-connected low back disability and the potential presence of any related radiculopathy disability. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be performed, and all clinical findings must be reported in detail. The examiner must identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the lumbar spine disability, to include any lower extremity radiculopathy. Concerning any neurological findings, the examiner should state what nerve is affected and whether there is complete or incomplete paralysis of the nerve. If incomplete paralysis is present, the examiner should provide an opinion as to whether it is mild, moderate, moderately severe, or severe, and should state whether there are sensory, motor, or strength loss manifestations. The examiner must conduct range of motion testing for active and passive motion and weight-bearing and nonweight-bearing of the thoracolumbar spine, expressed in degrees. The examiner should provide ranges of thoracolumbar spine motion with specific findings as to whether there is objective evidence of pain on motion, weakened motion, excess motion, fatigability, or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the thoracolumbar spine due to pain or any of the other symptoms during flare-ups or with repeated use. If muscle spasm or guarding of the thoracolumbar spine is present, the examiner should state whether it is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should comment as to the existence and frequency of any incapacitating episodes of intervertebral disc syndrome, periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. If the Veteran has incapacitating episodes associated with the lumbar spine disability, the examiner should specify the frequency and duration. The examiner should state whether or not there is any ankylosis of the spine. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gillett, Todd M. 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.