Citation Nr: 1330848 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-48 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the cervical spine with old compression fracture at C6. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from April 1961 to August 1961 and from October 1961 to August 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board remanded this matter in May 2012 for RO review of new and material evidence that was submitted without waiver and for the scheduling of a VA examination. All development was substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reason for Remand: To schedule the Veteran for a new VA examination. In May 2012, the Board determined that the Veteran was entitled to new neurological and orthopedic VA examinations to determine the current severity of his degenerative disc disease of the cervical spine with old compression fracture at C6 ("cervical spine disorder"). Specifically, the Veteran had alleged that his cervical spine disorder had worsened since the April 2009 examination. On remand, the AMC ordered the scheduling of the VA examinations; however, the record indicates that the Veteran failed to report for his appointments. When a VA examination is scheduled for a claim for an increased rating, and the Veteran fails to appear to this examination without good cause, and the examination was necessary to establish entitlement to the benefit sought, the provisions of 38 C.F.R. § 3.655 require that the claim for an increased rating be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655 (2012). In a December 2012 letter sent in response to the December 2012 supplemental statement of the case, the Veteran indicated that he was not provided sufficient notice of his VA examinations. He said VA called his home and left a message on his answering machine the day before his examination but he was out of town and did not receive it. On the day of his examination, VA called his cellular telephone; however, he was still out of town and unable to attend his appointments. He said VA told him his examinations would be rescheduled. He noted that written notice of his examination was not received until the day after his scheduled examination. The Board observes that a copy of the notice letter from the VA facility is not of record, thus the Board is unable to determine the date it was sent to the Veteran. Regardless, the Board finds that the Veteran should be given the benefit of the doubt that he did not receive timely notice of his examinations. Good cause having been shown, the Board finds that the examinations should be rescheduled at the earliest convenience. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Then, schedule the Veteran for VA neurological and orthopedic examinations. The neurological examination [to determine the nature and extent of his service-connected degenerative disc disease of the cervical spine with old compression fracture of C6] should be conducted first, and that examination report should be made available to the VA orthopedic examiner in conjunction with that examination of the Veteran. The claims file must be made available to each examiner designated to examine the Veteran, and each examination report should include discussion of his documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. Each examiner should set forth all examination findings, together with the rationale for the comments and opinions expressed. a) The neurologist should describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected cervical spine disc disease. b) The orthopedic examiner should conduct range of motion testing of the cervical spine (expressed in degrees, with standard ranges provided for comparison purposes). He/she should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or in coordination associated with the cervical spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran's limitation of motion is comparable to ankylosis of the spine and, if so, whether such is favorable or unfavorable, and the extent of such impairment. c) Considering all neurological and orthopedic examination findings, the orthopedist should provide findings responsive to the criteria for rating intervertebral disc syndrome (IDS) and specifically, comment on the existence and frequency of any of the Veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician) in the last 12-month period. d) The orthopedist should also provide an opinion as to the effect that the service-connected cervical spine disc disease has, if any, on the Veteran's employment and daily life. Moreover, the orthopedist should render an opinion as to whether the disability alone precludes the Veteran from engaging in substantially gainful employment. The conclusions of the examiner should reflect review of the claims folder, and the discussion of pertinent evidence. e) If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).