Citation Nr: 1606992 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 09-43 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased initial evaluation in excess of 10 percent for lumbar spine intervertebral disc syndrome with mild scoliosis. 2. Entitlement to separate rating(s) for neurologic manifestations of lumbar spine disability (claimed as service connection for bilateral radiculopathy). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran had active service from June 2007 to April 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA) that assigned a noncompensable disability rating for intervertebral disc syndrome of the lumbar spine, after granting service connection for the same. Service connection for radiculopathy of the lower extremities was denied. In September 2009, the initial evaluation assigned for intervertebral disc syndrome of the lumbar spine was increased to 10 percent. In connection with this appeal, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge in April 2013. A transcript of that hearing has been associated with the claims file. These matters were previously remanded by the Board in July 2013. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The July 2013 Board Remand, directed the RO to schedule the Veteran for VA examinations to assess the severity of his low back condition and to establish the etiology of his claimed radiculopathy of the lower extremities. The record reflects that the AOJ scheduled the Veteran for two such examinations. In that regard, Eastern Colorado Heath Care VAMC dispatched a letter requesting the Veteran contact their offices to confirm an appropriate examination date. See Correspondence dated on August 22, 2013. The letter stated that if no response was received from the Veteran, within ten calendar days, his examination request would be cancelled. Id. The Veteran failed to respond to this letter and his examination request was cancelled. See September 3, 2013 Eastern Colorado VAMC cancellation record. Shortly thereafter, the record reflects that the Veteran contacted the RO and requested that his examination be rescheduled for good cause. See September 13, 2013 VA-21082 Form, Report of General Information. He reported that as a result of moving, and delayed forwarding of his mail, he did not receive the VAMC correspondence until after the 10 day limit had expired. Id. Additionally, in May 2014, the Veteran's representative submitted a formal request to have his examinations reschedule for good cause based on similar rationale. With that said, the record is silent as to any action taken by the RO to reschedule his examinations. However, having reviewed the evidence of record, the Board finds that the Veteran has presented good cause for his, in essence, failure to report for VA examination. 38 C.F.R. §§ 3.655(a), (b) (2015). Therefore, another attempt should be made to afford the Veteran an examination. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran VA examinations of the lumbar spine as necessary to identify separate orthopedic and neurologic manifestations of the service-connected lumbar disability. The claims folder should be made available to the examiner(s) for review in connection with the examination(s). The examiner(s) must indicate that pertinent documents, to include electronic records, were reviewed. The examiner should comment on the service treatment records, the May 2008 VA examination, VA outpatient treatment records which reference radiculopathy, and the Veteran's lay statements as to severity and manifestations of lumbar disability since service separation in 2008. Indicated tests and studies should be accomplished. Special attention is directed to the Veteran's Medical Board Evaluation, and accompanying physical examination, conducted on January 4, 2008. The examiner(s) should then address the following: a. Indicate whether there is forward flexion of the thoracolumbar spine less than 30 degrees or favorable ankylosis of the thoracolumbar spine. The description of the range of motion of the spine must separately state the Veteran's actual range of motion in each plane and identify the point at which pain begins with each motion. State whether the total range of motion is decreased after repeated motions and whether the point in the range of motion at which pain is manifested changes after repetitions of the motion. State whether or not the Veteran manifests pain, weakened movement, excess fatigability or incoordination on movement, or due to pain on use or during flare-ups. b. Document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." c. State whether the Veteran has any neurologic impairment. If neurologic impairment is identified and attributed to the Veteran's lumbar spine disability, the examiner should identify the nerve group(s) involved, the extremity or extremities involved, and the manifestations of neurologic impairment. The examiner should indicate whether the Veteran experiences mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis of the affected nerve group(s). The rationale for the opinions expressed should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should explain why speculation is required. 2. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims file if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 3. After completion of the above and any additional development deemed necessary, the appeal should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).