Citation Nr: 1815019 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-37 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease (DDD) of L4-5 and L5-S1. 2. Entitlement to an initial compensable evaluation for radiculopathy involving the left lower extremity. 3. Entitlement to an initial evaluation in excess of 30 percent for cervical degenerative joint disease (DJD), status post C4-C7 discectomies. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1986 to October 1994. This appeal comes before the Board of Veterans' Appeals (Board) from October 2008 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2013 the Veteran and his spouse testified at a hearing at the RO before a Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file. The VLJ is no longer employed by the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). In an August 2017 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board and that he had the right to another hearing. See 38 C.F.R. § 20.717 (2017). He was notified that if he did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. The Veteran was scheduled for a hearing in January 2018. In January 2018 the Veteran's representative withdrew the request for a hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Upon review of the record, the Board finds that the issues must be remanded. The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. Evidence of record indicates that the Veteran failed to report for VA examinations in April 2017. However, the Veteran has indicated that at the time he was notified of his examination, he had had bicep and shoulder surgery one week prior, was in extreme pain, and was unable to attend the examination. He further stated that he attempted to reschedule his examinations, but received no response. The Board finds that the Veteran has presented good cause for his failure to report, and remand is required to afford the Veteran another opportunity to appear for the appropriate examinations to assist in his claim. See 38 C.F.R. § 3.655 (2017) (noting that the effect of failure to report to an examination without good cause may include denial of the claim). Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Thereafter, schedule the Veteran for VA examinations with appropriate examiner(s) to address current severity of his degenerative disc disease of L4-5 and L5-S1, radiculopathy involving the left lower extremity, and cervical degenerative joint disease, status post C4-C7 discectomies. The AOJ must document in the claims file all attempts to schedule the examination, including a copy of the notice letter scheduling the examination and whether any notice was returned as undeliverable. The claims folder must be made available to the examiner(s) for review in connection with the examinations. The examination reports should reflect that the claims file was reviewed, including any newly associated records. The examiner should provide findings as to the range of motion of the lumbar spine and cervical spine, including flexion and extension. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine and cervical spine are used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. The examiner should also comment on whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes over the past 12 months, and identify all neurological manifestations of the disabilities. 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. The examiner should also comment on the impact of the Veteran's conditions on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 4. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The AOJ should also undertake any other development it determines to be warranted. 6. Thereafter, the AOJ must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 7. Then, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).