Entitlement to an increased initial rating for lumbar strain with arthritis and intervertebral disc syndrome (IVDS), currently rated as 10 percent disabling prior to June 19, 2017 and 40 percent disabling thereafter, is…

Citation Nr: 26001407 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 13-04 740 DATE: January 30, 2026 REMANDED Entitlement to an increased initial rating for lumbar strain with arthritis and intervertebral disc syndrome (IVDS), currently rated as 10 percent disabling prior to June 19, 2017 and 40 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty for training from January 2006 to August 2006, and on active duty from December 2007 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Veteran participated in a hearing with a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2018 and again in February 2025, the Board notified the Veteran that the VLJ who conducted the hearing was no longer available to participate in his appeal. The letters informed the Veteran that he had the right to request another Board hearing, but that if he did not respond within 30 days, the Board would assume he did not want another hearing and would decide the case based on the evidence of record. The Veteran has not responded or otherwise requested another Board hearing. This matter was previously before the Board in March 2015, February 2017, December 2018, and March 2024 for additional evidentiary development. Most recently, in its March 2024 remand, the Board determined previous VA examinations and opinions from June 2017 and September 2020 were inadequate and directed the RO to provide the Veteran with an updated examination for his lumbar spine disability. The Board notes that the Veteran had previously perfected his appeal regarding his claim for service connection for a cervical spine disorder. In an October 2024 rating decision, the RO granted service connection for that disorder. The effective date of that award was October 20, 2011, which corresponds to the date of claim for those benefits. That issue has therefore been granted in full and is no longer before the Board. In the October 2024 rating decision, the RO also granted an increased 40 percent rating for the Veteran's lumbar spine disability effective June 19, 2017. That rating action did not constitute a full grant of the benefits sought on appeal, and thus the claim for increase remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an increased initial rating for lumbar strain with arthritis and IVDS is remanded. The Veteran seeks an increased initial rating for his lumbar spine disability. As noted, the most recent Board remand determined prior VA examinations involving the lumbar spine were inadequate. The Board directed the RO to provide a new examination, which was completed in April 2024. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the United States Court of Appeals for Veterans Claims (Court) held that, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. In Ingram v. Collins, 38 Vet. App. 130 (2025), the Court held that in accordance with their holding in Jones, where the DCs do not reference medication, the Board must discount the beneficial medication effects when assigning an evaluation. In this case, the applicable DC for the Veteran's lumbar spine disability does not include the use of medication. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The April 2024 VA examination report notes the Veteran treated his symptoms with acupuncture and over-the-counter topical pain medication, but does not address the ameliorative effects, if any, of that treatment regimen. Thus, given the Court's holdings in Jones and Ingram, the Board has no choice but to find the most recent C&P examination is inadequate. A remand is necessary to correct this pre-decisional duty to assist error. Specifically, the Veteran should be afforded an examination so an examiner can provide an opinion that considers the severity of the Veteran's disability without the ameliorative effects of medications. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical opinion, it must ensure the examination or opinion is adequate). The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate examiner regarding the nature and severity of the Veteran's lumbar spine disability. A copy of the claims file, including this Remand, should be made available to the examiner. The examiner should: (a) Identify and describe all symptoms and manifestations attributable to the Veteran's disability. All necessary diagnostic testing and evaluation should be performed, including range of motion testing in both passive and weight-bearing situations. If pain is identified during passive or non-weight-bearing range of motion, the examiner should estimate the degree at which pain begins. (b) Determine whether the Veteran's spine exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the spine, including during times when these symptoms are most problematic ("flare-ups") or during prolonged, repetitive, use. (c) Inquire whether there are periods of flare-ups and, if the answer is yes, state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment. (d) Opine as whether the Veteran's lumbar spine disability ever results in "functional ankylosis." (e) Opine as to whether the Veteran's use of acupuncture, over-the-counter pain medication, or any other medication regimen affected the level of severity of his lumbar spine disability. (Continued on the next page) ? (f) Identify what, if any, symptoms the Veteran would have as a result of his lumbar spine disability in the absence of medication. The examiner is advised the Veteran is competent to report symptoms, treatment, events, and injuries, and his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ryan, 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.