Citation Nr: 18147856 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 14-35 226A DATE: November 7, 2018 REMANDED 1. The issue of entitlement to an increased rating in excess of 40 percent for intervertebral disc syndrome (IVDS) is remanded. 2. The issue of entitlement to an initial rating in excess of 10 percent for right lumbar radiculopathy is remanded. 3. The issue of entitlement to an initial rating in excess of 10 percent for left lumbar radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1973 to June 1993. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction is currently with the RO in Baltimore, Maryland. The Veteran originally requested a central office hearing before a Veterans Law Judge. The hearing was set for August 2016 and the Veteran was duly notified of such at his address of record. There is no indication in the claims file that the letter was returned or otherwise not received by the Veteran. The Veteran failed to appear at the August 2016 hearing and has not provided any good cause for such failure. Because the Veteran has not submitted good cause for his failure to appear, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (d) (failure to appear for a scheduled hearing treated as withdrawal of request). 1. The issue of entitlement to an increased rating for IVDS is remanded. In the October 2014 VA Form 9, the Veteran stated that his service-connected back disability had worsened in severity. Additionally, private treatment records noted an increase in back pain, which warranted new treatment, to include injection therapy. See National Spine and Pain Center Treatment Record dated October 9, 2014. Based on the reports of worsening symptomatology, the medical evidence of record, and the fact that the Veteran’s last VA examination related to this disability took place in October 2012, the Board finds that he should be afforded a new VA examination to determine the current severity of his service-connected IVDS. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Further, the Veteran has not been afforded an adequate VA examination to measure his range of motion upon weight bearing, and under both active and passive conditions, for his service-connected spine disability. Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and nonweight bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Therefore, a new examination is necessary to determine the severity of the Veteran’s IVDS under Correia. 2. The issues of entitlement to increased initial ratings for bilateral lumbar radiculopathy of the lower extremities are remanded. The increased ratings for bilateral lumbar radiculopathy are intertwined with the above remanded lumbar spine disability and are also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Associate any of the Veteran’s outstanding VA medical records related to his IVDS and bilateral lumbar radiculopathy with the claims file. Contact the Veteran and request that he provide or identify any additional updated outstanding private records pertinent to treatment for these disabilities. He should be asked to authorize the release of any outstanding pertinent non-VA medical records. If any requested records cannot be obtained, the Veteran must be notified of the attempts made and of what additional actions will be taken regarding his claim. 2. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected IVDS and associated radiculopathy disabilities. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. Those findings provided should include range of motion of the lumbar spine, including tests for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In the context of flare-ups, if one is not occurring at the time of the examination, it is requested that the examiner estimate any functional limitation in terms of the degree of additional loss of range of motion after eliciting appropriate information from the Veteran, and considering all the information of record. In addition to completing the above testing, the examiner should additionally address any and all neurological complications associated with his IVDS, including radiculopathy. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effects of the Veteran’s IVDS and radiculopathy. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel