Citation Nr: 20004825 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 06-27 356 DATE: January 21, 2020 REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) from July 1, 2007, to May 10, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1999 to April 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the appeal for further development in August 2009, May 2011, June 2017, and January 2019. 1. A rating in excess of 40 percent for degenerative disc disease of the lumbar spine is remanded. 2. An initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. 3. An initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. A review of the claims file shows that a VA 21-2507a Request for Physical Examination notes the Veteran was scheduled for VA examinations to determine the current severity of his service-connected back and radiculopathy disabilities, but he failed to report. The record shows that the Veteran has been incarcerated since October 2018, which explains why he did not appear for the examinations. See April 2019 VA Form 27-0820e, Report of Incarceration. Given the Veteran’s incarceration, the Board finds that further efforts to arrange for an examination are warranted. In this regard, under Bolton v. Brown, 8 Vet. App. 185, 191 (1995), the record must contain information documenting the efforts expended by the RO in satisfying the duty to assist in cases involving incarcerated veterans, to include consideration of whether an examination could be scheduled at the prison where the veteran is incarcerated. The Court in Bolton cited to the admonition in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), that those who adjudicate claims of incarcerated veterans must tailor their assistance to the peculiar circumstances of confinement. There is no indication that the RO has made any effort to reasonably accommodate the veteran in light of his continuing incarceration. See Bolton, supra. Accordingly, the RO should make efforts to obtain the necessary examination despite the Veteran’s incarceration. If an examination cannot be obtained with VA examiners, the RO should determine if the medical staff at the correctional facility can provide the Veteran with a medical examination adequate for VA purposes. If the RO is unsuccessful in its attempts to obtain the examinations, an explanation as to why the examinations could not be obtained should be included in the record. 4. A TDIU from July 1, 2007, to May 10, 2010, is remanded. The issue of entitlement to TDIU prior to May 10, 2010 is inextricably intertwined with the Veteran’s back and radiculopathy claims because the development and outcome of those claims may affect whether entitlement to a TDIU prior to May 10, 2010, is warranted. Therefore, the Board will not address that issue at this time. The matters are REMANDED for the following action: Make appropriate efforts to arrange for examinations of the Veteran to assess the current severity of his low back disability and radiculopathy of the bilateral lower extremities, despite his incarceration. If an examination cannot be obtained using VA examiners, the RO should contact the correctional facility and determine if the medical staff there can provide the Veteran with a medical examination adequate for VA purposes. If the RO is unsuccessful in its attempts to obtain the examinations, an explanation as to why the examinations could not be obtained should be included in the record. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.