FLATFOOT BILATERAL ACQUIRED

B. G. LEMOINE · 2022 · Case ID: 22027092

MIXED

Summary

The veteran, who served in the Army from March 1, 1979, to July 12, 1983, appeals the Regional Office's (RO) reduction of her disability rating for right foot pes planus from 30 percent to 20 percent, effective June 1, 2018. She also appeals the denial of entitlement to a total disability rating based on individual unemployability (TDIU) for the period from December 21, 2015, to December 29, 2017, and seeks a rating in excess of 20 percent for her service-connected lumbar spine disability. The Board granted the restoration of the 30 percent rating for right foot pes planus, finding the reduction improper as the RO failed to demonstrate an improvement in the veteran's ability to function under ordinary conditions. The Board also granted TDIU for the period of December 21, 2015, to December 29, 2017, based on the veteran's reported inability to secure and maintain substantially gainful employment due to her service-connected disabilities, supported by a private medical opinion and the veteran's own statements. The claim for an increased rating for lumbar spine disability was remanded for a new VA examination to assess current severity.

Rationale

Reduction improper as RO did not address improvement in ability to function; Weight of evidence did not show ascertainable improvement; Symptoms remained same or worsened post-reduction

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

20-01 168

Full Decision Text

Citation Nr: 22027092
Decision Date: 05/09/22 Archive Date: 05/09/22

DOCKET NO. 20-01 168
DATE: May 9, 2022

ORDER

The reduction in the disability evaluation for right foot pes planus from 30 percent to 20 percent effective June 1, 2018 was improper; a restoration of the 30 percent is granted.

A total disability rating based on individual unemployability (TDIU) is granted from the period from December 21, 2015 to December 29, 2017, subject to the provision governing the award of monetary benefits.

REMANDED

The claim for a rating in excess of 20 percent for lumbar spine disability is remanded.

FINDINGS OF FACT

1. In a March 2018 rating decision, the Regional Office (RO) reduced the rating for the Veteran's right foot pes planus from 30 percent to 20 percent effective June 1, 2018; at the time of the reduction, the 30 percent rating had not been in effect for more than five years and the reduction did not result in a decrease in the Veteran's overall disability rating.

2. At the time of the March 2018 rating decision, the evidence of record did not reflect an improvement in the Veteran's right foot pes planus under the ordinary conditions of life and work.

3. From December 21, 2015, the date VA received the Veteran's claim for increased compensation for her service-connected right foot and low back disabilities, to December 29, 2017, the Veteran is found to have been unable to obtain and maintain employment as a result of her service-connected disabilities.

CONCLUSIONS OF LAW

1. The reduction of the rating for bilateral pes planus from 30 percent to 20 percent, effective June 1, 2018, was improper, and the 30 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 4.1, 4.73, Diagnostic Code 5276.

2. From December 21, 2015 to December 29, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Army from March 1, 1979 to July 12, 1983.

This matter comes before the Board of Veterans' Appeals (Board) from March 2018 and July 2018 rating decisions of the Department of Veterans Affairs (VA) regional office (RO).

The Veteran requested a hearing before a Veterans Law Judge. In a statement, received by VA in November 2021, she withdrew the hearing request, and has not requested that the hearing be rescheduled. Thus, the Board will proceed with its review of the appeal.

In a February 2022 statement to the Board, the Veteran's attorney requested copies of VA examinations that were the basis of the RO's reduction of the service-connected right foot pes planus. The Board notes that as the Veteran's recognized representative in the appeal, the Veteran's attorney has access to her entire record on the Veteran's Benefits Management System (VBMS), to include the requested VA examinations. As the Board has not received a waiver of initial consideration of the VA examination reports of record, it will proceed with its appellate review of the claims for restoration of the 30 percent rating for the service-connected right foot disability, entitlement to a rating in excess of 20 percent for a low back disability and entitlement to a TDIU rating.

The issue of entitlement to TDIU benefits is part and parcel of the underlying claim for a higher rating for the lumbar spine disability remanded herein. Rice v. Shinseki, 22 Vet. App. 447 (2009). By a November 2019 rating action, the RO granted a TDIU for the period after January 26, 2018. By an April 2020 rating action, the RO granted an effective date of December 29, 2017 to the award of TDIU. However, eligibility for a TDIU for the prior period to December 29, 2017 remains on appeal as the matter was not granted in full. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In March 2022, the Veteran's attorney submitted an argument in support of the Veteran's TDIU claim along with
ki, 22 Vet. App. 447 (2009). By a November 2019 rating action, the RO granted a TDIU for the period after January 26, 2018. By an April 2020 rating action, the RO granted an effective date of December 29, 2017 to the award of TDIU. However, eligibility for a TDIU for the prior period to December 29, 2017 remains on appeal as the matter was not granted in full. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In March 2022, the Veteran's attorney submitted an argument in support of the Veteran's TDIU claim along with a waiver of initial RO consideration. Thus, a remand to have the RO initially consider this evidence is not required in this instance, and the Board will proceed with its appellate review of the claim.

i) Entitlement to a restoration of a 30 percent rating for right foot pes planus is granted, effective June 1, 2018.

The Veteran contends that her right foot pes planus has not improved to warrant a reduction in her rating from 30 to 20 percent, effective June 1, 2018. As noted in the introduction, in the appealed March 2018 rating action, the RO reduced the Veteran's disability rating assigned to her right foot pes planus from 30 percent to 20 percent effective June 1, 2018. See March 2018 rating decision. Prior to that, this disability had been rated at 30 percent since December 21, 2015.

A Veteran's disability rating may not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a reduction is effectuated without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

The veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. 38 C.F.R. § 3.105(e) sets forth procedural requirements where a reduction in the rating of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made. The heightened notification and procedural safeguards provided in 38 C.F.R. § 3.105 (e) and (i) do not apply to this case because the reduction of the Veteran's rating for her right foot disability from 30 to 20 percent did not result in a decrease in her overall combined disability rating, and thus, a reduction in her compensation payments.

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344. These provisions are only applicable for ratings which have continued for long periods at the same level (five years or more). In this case, the Veteran's 30 percent disability rating for right foot pes planus was in effect from December 21, 2015, which is less than five years. As a result, the protections under 38 C.F.R. §§ 3.344 (a) and (b) do not apply.

A reduction in rating is warranted where reexamination discloses a physical improvement. 38 C.F.R. § 3.344 (c). Before implementing such a reduction, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in the service-connected disability has actually occurred and that such improvement actually reflects an improvement in the claimant's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-421; 38 C.F.R. § 3.344 (c). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995).

In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating, whether the condition actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction.

Pes planus, or flatfoot, is evaluated using Diagnostic Code (DC) 5276.
of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995).

Pes planus, or flatfoot, is evaluated using Diagnostic Code (DC) 5276. 38 C.F.R. § 4.71a. Under that diagnostic code, in pertinent part, severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities is assigned a 20 percent rating if unilateral. Pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances is assigned a 30 percent rating if unilateral.

When 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. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the revised regulations did not impact DC 5276.

Upon review of all the evidence of record, the Board finds that the reduction of the right foot pes planus from 30 to 20 percent, effective June 1, 2018 was improper because the RO did not address whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work.

The Veteran underwent a VA examination in March 2016, which was the basis for the 30 percent rating assigned to her right foot pes planus. See March 2016 VA Foot Disability Benefit Questionnaire (DBQ). The Veteran was diagnosed, in part, with right foot pes planus. She reported having sharp pain in her right foot and toes that increased with use. The examiner noted that severe pain was noted with any touch to the right foot. The Veteran reported flare-ups of the right foot that resulted in increased pain with numbness on standing or walking, and that ambulation was limited to half-a-block. She reported that her right foot went numb when she went to stand to wash dishes.

An examination of the right foot in March 2016 revealed pain that was accentuated on use and with manipulation. There was no evidence of swelling on use and characteristic callouses were noted to have been unrelieved with arch supports. There was evidence of extreme tenderness of the plantar surfaces of the right foot, and it was not reported whether it was improved by orthopedic shoes or appliances. The Veteran had decreased longitudinal arch height of the right foot on weight-bearing, marked deformity of the right foot, and the weight-bearing line fell over or medial to the great toe. The Veteran also had "inward" boing of the Achilles tendon on the right foot. There was no evidence of marked inward displacement and severe spasm of the Achilles tendon on manipulation of the right foot or both feet. The examiner indicated that the Veteran had weakened movement, incoordination, pain on movement, pain on weight-bearing, pain on non-weight-bearing and interference with standing and disturbance of locomotion of the right foot. The Veteran was limited to walking one-half a block, and had increased pain standing when she washed dishes and ascended and descended stairs.

The Veteran underwent another VA examination of her right foot in October 2016. At that examination, she stated that she had constant right foot pain, weakness and numbness that mostly involved her toes. She stated that she did not wear foot orthotics, but that she used a rolling walker and took over-the-counter medicine about three times per week as needed for her pain. The Veteran reported that she could walk slowly with her rolling walker up to one-eight of a mile, but that she avoided climbing the stairs. She reported that she was able to perform all of her indoor chores and that she did not have to perform any outdoor chores.

An examination of the right foot in October 2016 revealed that she had decreased longitudinal arch height of both feet, pain that was accentuated on use of the right, and pain on manipulation of the foot. There was no evidence of extreme tenderness of plantar surfaces of either foot,
her toes. She stated that she did not wear foot orthotics, but that she used a rolling walker and took over-the-counter medicine about three times per week as needed for her pain. The Veteran reported that she could walk slowly with her rolling walker up to one-eight of a mile, but that she avoided climbing the stairs. She reported that she was able to perform all of her indoor chores and that she did not have to perform any outdoor chores.

An examination of the right foot in October 2016 revealed that she had decreased longitudinal arch height of both feet, pain that was accentuated on use of the right, and pain on manipulation of the foot. There was no evidence of extreme tenderness of plantar surfaces of either foot, marked deformity or pronation of the right foot, and the weight-bearing line did not fall over medial to the great toe. There was no marked inward displacement, severe spasm of Achilles Tendon on manipulation of the right foot, and no inward bowing of the Achilles Tendon. The examiner stated that the Veteran would have difficulty ambulating for long distances because of her right foot condition. See October 2016 Feet Disability Benefits Questionnaire (DBQ).

VA examined the Veteran's right foot in November 2019. At that time, the Veteran reported that over the years, she had not had a proper ankle foot orthosis, that the Achilles tendon had contracted and that she had been unable to dorsiflex her foot, even passively. The foot was held in plantar flexion at approximately 45 degrees. She described having right foot pain that burned with stabbing exacerbations and localized to the lateral foot and fourth and fifth toes. She maintained that there were unexpected flare-ups as well as those caused by prolonged standing. The Veteran reported that she would sit on her walker when she washed the dishes to prevent an exacerbation.

An examination of the right foot in November 2019 revealed that she had pain on use of the right foot and pain that was accentuated on use. There was no swelling on use, characteristic callouses, or extreme tenderness of plantar surfaces on one or both feet. She had decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet or marked pronation of the right foot. The right foot's weight-bearing line did not fall over or medical to great toes. There was no marked inward displacement and severe spasm of the Achilles Tendon and no "inward" bowing of the Achilles Tendon. The Veteran had less movement than normal of the right foot, weakened movement of the right foot, pain on weight-bearing and non-weight-bearing and an Achilles contracture of the right foot. There was decreased mobility secondary to right foot drop and Achilles' contracture, along with pain with increased use of the right foot. She was noted to have occasionally used a brace, constantly necessitated a cane and regularly used a walker. The examiner noted that occupations requiring ambulation or prolonged standing would result in increased pain. See November 2019 VA feet DBQ.

In a statement to VA, received in December 2021, the Veteran indicated that her right foot had not improved at the time of reduction, and that it had continued to get worse. She reported having severe pain on the inside of her right foot into the ankle, leg and back. The Veteran related that the bottom of her right foot was very tender and, as a result, she was unable to walk barefoot or in any type of thin-soled shoe or flats. She reported having numb toes, and that her pain was unrelieved with medication.

Upon review, the Board concludes that, at the time of the reduction, the weight of the evidence did not show an ascertainable improvement in the Veteran's ability to function under the ordinary conditions of life and work. While the March 2016 VA examination, which is the basis for the 30 percent rating, noted extreme tenderness of plantar surfaces of both feet which was not shown on later examinations, most of the other symptoms reported by the Veteran remained the same or worsened. Notably, the October 2016 and November 2019 VA examiner found pain on use and manipulation of the feet that was accentuated with pain or manipulation, as well as decreased longitudinal arch height. In addition, while the March 2016 examiner noted that the Veteran was limited to walking one-half a block, and had increased pain standing when she washed dishes and ascended and descended stairs, the October 2016 and November 2019 VA examiners concluded that she would have difficulty ambulating long distances and that occupations requiring ambulation or prolonged standing would result in increased pain, respectively. These findings are supported by the Veteran's December 2021 statement that her symptoms had not improved since the RO's reduction, and that she continued to suffer from
October 2016 and November 2019 VA examiner found pain on use and manipulation of the feet that was accentuated with pain or manipulation, as well as decreased longitudinal arch height. In addition, while the March 2016 examiner noted that the Veteran was limited to walking one-half a block, and had increased pain standing when she washed dishes and ascended and descended stairs, the October 2016 and November 2019 VA examiners concluded that she would have difficulty ambulating long distances and that occupations requiring ambulation or prolonged standing would result in increased pain, respectively. These findings are supported by the Veteran's December 2021 statement that her symptoms had not improved since the RO's reduction, and that she continued to suffer from severe pain that was unrelieved with medication.

Given the above, the Board finds that the rating reduction for right foot pes planus was improper, and the 30 percent rating should be restored effective June 1, 2018. Accordingly, the appeal for the restoration of the 30 percent rating assigned for the Veteran's right foot pes planus is granted.

ii) TDIU is granted for the period from December 21, 2015 to December 29, 2017.

As noted in the Introduction, the Veteran has been awarded a TDIU rating for the period from December 29, 2017 to the present. Thus, the question that remains is whether there is evidence showing that she has been unable to secure and follow a substantially gainful occupation due to her service-connected disabilities for the period prior to December 29, 2017.

At the outset, the Board does not find the TDIU claim to be intertwined with the remanded claim for a higher rating for the service-connected low back disability. Here, as the Veteran has maintained that her low back disability has increased in severity since the 2019 VA examination and the Veteran has been awarded a TDIU for the period from December 29, 2017, the TDIU claim is not intertwined with her claim for a higher rating for her low back disability since the new examination would not be relevant to the period prior thereto that is adjudicated by the Board herein.

The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with her education and experience.

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Essentially, in considering TDIU claims, the Board must fully consider a veteran's (1) history, (2) education, (3) skills, (4) training, and (5) physical and (6) mental ability.

"[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16 (a) comprises both economic and noneconomic components, which required consideration of a wide range of factors, and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, 30 Vet. App. at 148.

The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential non-physical employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a

The Board finds the evidence supports a TDIU rating for the period from December 21, 2015, the date of VA's receipt of the Veteran's claim for increased compensation for her low back and right calf disabilities, to December 29, 2017, she was totally social and occupationally impaired from her service-connected disabilities.

The Veteran's TDIU claim arose from her claim for increased ratings for her service-connected lumbar spine and right foot disabilities, which was received by VA on December 21, 2015. Rice, supra. At that time, service connection was in effect for the following disabilities (i) right calf disability, evaluated as 60 percent disabling; (ii) right foot disability, evaluated as 30 percent disabling; (iii) lumbar spine disability, evaluated as 20 percent disabling; and, right toe disability, noncompensable rating. In a November 2019 rating action, the RO granted service connection for posttraumatic stress disorder (PTSD), and assigned a 70 percent rating, effective January 26, 2018. For the period from December 21, 2015, the Veteran's total disability rating was 80 percent, to include consideration of the bilateral factor. Thus, as the Veteran had two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent from December 21, 2015, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16 (a) were met for the period on appeal (i.e., December 21, 2015 to December 29, 2017).

In considering the claim for a TIDU rating, the Board notes a Veteran's application for increased compensation based on unemployability (VA Form 21-8940) was received by VA
Veteran's total disability rating was 80 percent, to include consideration of the bilateral factor. Thus, as the Veteran had two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent from December 21, 2015, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16 (a) were met for the period on appeal (i.e., December 21, 2015 to December 29, 2017).

In considering the claim for a TIDU rating, the Board notes a Veteran's application for increased compensation based on unemployability (VA Form 21-8940) was received by VA in September 2016. On that form, the Veteran reported that she was unable to work secondary to her service-connected right foot nerve damage and low back disability. The Veteran reported that she had last worked in 1985 as an administrative specialist, and that she left that position due to her disability. The Veteran reported that she had ongoing pain, and that she was too disabled to work, and that her age was also a factor. She indicated that she had a high school education.

Of further note is an October 2020 evaluation report, authored by G. S., D.O. After a review of the record and considering the combined effects of the Veteran's service-connected disabilities, Dr. G. S. opined that the symptoms and limitations stemming from her service-connected disabilities had prevented her from performing full-time work during the period from February 3, 2017, the date she filed her claim for an increased rating for her right foot disability through December 29, 2017, the date she was awarded a TDIU rating. Dr. G. S. reasoned that during that period, the Veteran was unable to perform any physical work and that the combined effects of her chronic pain, hyperesthesia, and weakness would be distracting and incompatible with the mental demands of sedentary work. Dr. G. S. maintained that during that period, the symptoms stemming from the Veteran's service-connected impairments would increase if she were placed in a competitive work environment. Dr. G. S. opined that the Veteran would have been absent from work more than three times a month and that her symptoms and limitations had existed since she had filed her claim on February 3, 2017.

In support of his conclusion, Dr. G. S. cited an October 2016 Disability Benefits Questionnaire (DBQ) reflecting that the Veteran described having had constant pain, stiffness and weakness of her lumbar spine. At that time, the Veteran was unable to walk 660 feet even with the use of a walker. That same report also showed decreased strength and range of lumbar spine motion. The VA examiner noted that the Veteran would have difficulty with many activities including performing manual labor because of her back disability. The Board agrees.

Here, the Board will grant a TDIU rating as the evidence of record shows that it is at least as likely as not that the Veteran's impairment of the mind and/or body precludes her from securing and/or maintaining a gainful employment on account of her service-connected disabilities, notably her service-connected right foot and low back disabilities from December 21, 2015, the date she filed a claim for increased compensation for her service-connected right foot and lumbar spine disabilities, to December 29, 2017. See 38 C.F.R. §§ 3.340 (a), 4.16(a). Accordingly, a TDIU rating is granted from December 21, 2015 to December 29, 2017.

REASONS FOR REMAND

The Veteran seeks a rating in excess of 20 percent for her service-connected low back disability. VA last examined the Veteran's spine in November 2019. See November 2019 VA Spine DBQ. In a December 2021 statement to VA, the Veteran reported that she had severe burning pain in her lower back from her right leg, that she was unable to bend, and that she could barely stand or walk for more than a few minutes. She maintained that she had to lay down to relieve the horrendous pain, and that two (2) to three (3) three times a month, she had to lie in bed for several days. In light of the Veteran's assertions of increased symptomatology associated with her low back disability, the Board finds that she should be provided an opportunity to report for another VA examination to ascertain its current severity.

The matter is REMANDED for the following action

Schedule the Veteran for a VA spine examination to determine the severity of her lower back disability.

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Car
barely stand or walk for more than a few minutes. She maintained that she had to lay down to relieve the horrendous pain, and that two (2) to three (3) three times a month, she had to lie in bed for several days. In light of the Veteran's assertions of increased symptomatology associated with her low back disability, the Board finds that she should be provided an opportunity to report for another VA examination to ascertain its current severity.

The matter is REMANDED for the following action

Schedule the Veteran for a VA spine examination to determine the severity of her lower back disability.

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Carole Kammel, 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.

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