Citation Nr: 18154232 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 07-09 617 DATE: November 29, 2018 REMANDED Entitlement to a rating in excess of 10 percent prior to December 30, 2015, and in excess of 20 percent as of December 30, 2015, for a cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2006 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2010, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. 1. Entitlement to an increased rating for a cervical spine disability is remanded. 2. Entitlement to TDIU is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The August 2017 Board remand specifically requested a VA examination of the cervical spine be scheduled. In the April 2018 Supplemental Statement of the Case, the RO indicated that the Veteran did not report for a scheduled examination. The record does not show that notice for a scheduled VA cervical spine examination was provided to the Veteran. In fact, a September 2017 indicates that the Veterans Health Administration canceled a scheduled examination. Compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the resulting actions are incomplete and do not substantially comply with the August 2017 Board remand requests. An examination must be scheduled for the Veteran and adequate written notice must be provided to the Veteran. The TDIU claim is inextricably intertwined with the claim increased rating for the cervical spine. As a result, the TDIU claim cannot be decided without first addressing the Veteran’s increased rating claim. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Secure all outstanding VA medical records. If any records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. If records are not obtained (a) notify the claimant of the specific records that VA is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to determine the current severity of a cervical spine disability. The examiner must review the claims file and must note that review in the report. All indicated tests should be accomplished, to include an electromyogram and nerve conduction studies if appropriate, and all clinical findings should be reported in detail. If a separate neurological examination is necessary, the examination should be scheduled. The examination should set forth all examination findings, and provide the complete rationale for the conclusions reached. The examiner should provide the following: (a.) In setting out neurological findings, the examiner should identify, and comment on the frequency or extent of all neurological symptoms associated with the cervical spine disability, to include radiculopathy or peripheral neuropathy. All neurological manifestations should be described in detail and the specific nerve affected should be specified, with the degree of paralysis caused by the service-connected disability stated. (b.) In setting out orthopedic findings, the examiner should conduct range of motion testing of the cervical spine, for passive and active motion, expressed in degrees. The examiner should make specific findings as to whether, there is objective evidence of pain on motion, weakness, excess fatigability, incoordination, or on flare up 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 experiences functional loss of the cervical spine due to pain or any of the other symptoms during flare ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limitation of motion. (c.) The examiner should indicate whether the Veteran has any ankylosis of the cervical spine, and, if so, the extent of any ankylosis, and whether the ankylosis is favorable or unfavorable. (d.) The examiner should state the number of weeks, if any, during the past 12 months, that the Veteran has had incapacitating episodes, which are defined as periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. (e.) The examiner should provide an opinion concerning the impact of the Veteran’s service connected cervical disability on his ability to work and daily living activities. Opine as to whether the Veteran’s service connected cervical spine disability has a marked interference with his employability. The examiner should reconcile the opinion with the July 2010 VA examiner’s opinion. (f.) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel