Citation Nr: 1753040 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-33 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for service-connected lumbosacral strain with degenerative joint disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to March 11, 2013. ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran had active military service from January 1984 to March 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to an increased rating for the Veteran's lumbar spine disability. By a September 2016 rating decision, the RO granted a TDIU, effective March 11, 2013. The issue of entitlement to a TDIU is part and parcel of the Veteran's increased rating claim and is thus pending during the appellate period, the period including the time prior to March 11, 2013. Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its June 2017 remand, the Board directed the AOJ to schedule the Veteran for a VA examination to ascertain the severity of his service-connected lumbar spine disability as the Veteran's request for a higher dose of pain medication for his lumbar spine symptoms indicated that his disability may have worsened. Additionally, the Board found the March 2013 VA examination inadequate in order to rate the Veteran's claim as it failed to include joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. See Correia v. McDonald 28 Vet. App. 158 (2016). In a letter to the Veteran in August 2017, it was noted that the VA examination request had been cancelled because he had not responded to calls and a letter reportedly provided by the VA Medical Center attempting to schedule the examination. The Board can discern no legal authority supporting the action of cancelling an examination because the Veteran has failed to respond; and there is no requirement in the applicable regulation that a Veteran participate in the scheduling of a needed VA examination. Cf. 38 C.F.R. § 3.655 (2017) (providing consequences where a claimant fails to report for a scheduled VA examination). Moreover, the reports of contact and letter documenting attempts to schedule the examination do not appear to be of record. Cf. Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (declining to apply the presumption of regularity to the scheduling of VA examinations). Additionally, an August 2017 notification letter advising the Veteran that he had 30 days to reschedule the examination was returned to the RO as undeliverable in October 2017. Therefore, the Board finds there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled, as a matter of law, to compliance with remand directives, and the Board itself commits error in failing to ensure this compliance). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of the service-connected lumbosacral strain with degenerative joint disease. The claims file and a copy of this remand should be reviewed by the examiner. The examiner should address the following: (a) Provide the ranges of motion of the thoracolumbar spine. The joint should be tested for pain on both active and passive range of motion in weight bearing and nonweight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, make specific findings regarding the presence or absence of favorable or unfavorable ankylosis. (c) Determine whether the lumbar spine disability exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected disorder, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. In assessing limitation during flare-ups, the examiner should ask the Veteran to report the limitation of motion he experiences during these episodes in degrees. The examiner should opine whether the Veteran's reports are consistent with the disability found on examination. (d) Identify any neurological manifestations associated with the service-connected lumbar spine disorder, to include any associated bladder or bowel impairment. (e) State whether the Veteran has episodes of physician prescribed bedrest for the lumbar spine disability, and if so, the duration of the episodes over the preceding 12 month period. (f) The examiner should comment on the impact of the Veteran's lumbar spine disability on his employability and activities of daily life. 2. If the Veteran fails to report for the scheduled examination; obtain any available evidence of the notice he was provided of the examination. 3. If the Veteran attends the scheduled examination and the combined disability rating does not meet the percentage requirements for TDIU prior to March 11, 2013; the AOJ should consider referral of the issue to the Director of Compensation for adjudication. 3. If any benefits sought on appeal are not granted, issue a supplemental statement of the case, then return the case to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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) (2017).