Citation Nr: 1624308 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 12-18 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE 1. Entitlement to a disability rating in excess of 30 percent for a cervical spine disorder. 2. Entitlement to an initial disability evaluation in excess of 20 percent for right upper extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty with the National Guard from May 13, 1991 to August 29, 1991, from December 1991 to July 1993, and with the Army from March 1994 to May 2008, where he was discharged under other than honorable conditions, in lieu of trial by Court-Martial. In an administrative decision dated in December 2008, the RO determined that the Veteran's service from March 15, 1994 to April 21, 1997 was honorable service, but that service from April 22, 1997 to May 23, 2008, was dishonorable and a legal bar to VA monetary benefits. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board in September 2015 remanded the matter to the RO by way of the Appeals Management Center (AMC) in Washington, D.C. for further development of the claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, before the Board makes a determination as to the Veteran's entitlement to an increased rating for service-connected cervical spine disorder, further development of the record is necessary. Since this matter was last before the Board in September 2015, the Veteran was afforded two VA examinations, one in November 2015 and one in March 2016. On the November 2015 examination, the Veteran reported that he was experiencing radiculopathy symptoms in his left hand, including weakness and numbness. Accordingly, the Veteran was also afforded a neurological examination in November 2015 to evaluate the radiculopathy of his upper extremities. That examination revealed moderate symptoms of paresthesias and numbness in the right upper extremity and mild symptoms in the left upper extremity. As a result of the findings on the November 2015 VA examination, the Veteran, in a March 2016 rating decision by the AMC, was granted a separate 20 percent rating for right upper extremity radiculopathy effective May 30, 2008, the date that service connection was initially granted for the cervical spine disorder. At the same time, in a March 2016 supplemental statement of the case, the Veteran's increased rating claim for cervical spine disorder was denied, and the 30 percent rating was continued. The AMC thereafter scheduled the Veteran for another cervical spine examination in April 2016, presumably to reevaluate the cervical spine disorder. Apparently, during the April 2016 VA examination, the Veteran appeared but refused to participate and the examination was cancelled. Subsequently, the AMC in an April 2016 rating decision reduced the Veteran's disability rating for his cervical spine disorder from 30 percent to 20 percent. The Board cannot endorse the reduction of the Veteran's rating for cervical spine disorder on the basis of an examination that the Veteran did not participate in. The Board acknowledges that the Veteran's forward flexion of the cervical spine of 0 to 30 degrees noted on the November 2015 examination correlates to a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5241 (2015). However, the AMC intended to have the Veteran's cervical spine reevaluated prior to deciding to reduce the disability rating of the cervical spine disorder. Proceeding to make a decision after the examination was cancelled, regardless of the fact that it was the Veteran's own refusal to participate that necessitated the cancellation, amounts to a denial of the Veteran's appellate rights. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination, the examination must be adequate). Accordingly, the Veteran should be scheduled for a new examination with the purpose of evaluating the functional impact of his cervical spine disorder and determining whether it is appropriate to reduce the disability rating. In addition, subsequent to the AMC granting a separate 20 percent disability rating for right upper extremity radiculopathy in its March 2016 rating decision, the Veteran filed a timely notice of disagreement (NOD) in April 2016 contending that he is entitled to an initial rating in excess of 20 percent. The filing of a NOD signals the initiation of an appeal in a claim. See 38 C.F.R. § 20.200. When there has been adjudication by the RO and a timely NOD has been filed, a statement of the case (SOC) addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). The RO has not issued the Veteran a SOC on the issue for which he has filed a NOD in April 2016. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of the cervical spine disorder, to include an evaluation of the propriety of the reduction of the disability rating of the cervical spine disorder. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must review all pertinent records associated with the claims file. An explanation for all opinions expressed must be provided. The examiner must conduct full range of motion studies on the service-connected cervical spine disorder. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected right shoulder disorder and lumbosacral strain. The examiner must also render an opinion as to the likelihood that the Veteran's forward flexion would improve over time. The results of the April 2010 VA examination, which showed forward flexion of 0 to 12 degrees, should be considered in light of subsequent examinations in January 2011 and November 2015 which showed forward flexion of 0 to 30 degrees. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination, and to cooperate in the development of the claims. Specifically, in its notice, the RO must acknowledge the Veteran's reluctance to participate in additional examinations, and inform him that the consequences for failure to report for a VA examination without good cause may include a reduction in the disability rating. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained and associated with the Veteran's electronic claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's electronic claims file demonstrating any notice that was sent and was returned as undeliverable. If the Veteran refuses to participate in the examination after reporting for it, documentation must be obtained and associated with the claims file detailing the circumstances of the Veteran's examination. 2. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 3. After completing the above actions, the cervical spine claim on appeal must be readjudicated, with consideration of the propriety of the reduction. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 4. In addition, furnish the Veteran and his representative a SOC on the appeal of the initial rating of his right upper extremity radiculopathy. In order to perfect an appeal to the Board, the Veteran must timely file a substantive appeal after issuance of the SOC. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. C. MACKENZIE 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).