Citation Nr: 20021546 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-16 864 DATE: March 26, 2020 REMANDED The claim of entitlement to a rating greater than 20 percent for lumbar strain, lumbar wedge fractures at T12/L1 and lumbar spondylosis is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to July 1977. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2015 rating decision in which the Department of Veterans (VA) Regional Office (RO), inter alia, denied an increased rating for service-connected lumbar spine disability. In October 2015, the Veteran filed a notice of disagreement (NOD). In May 2016, the RO issued an SOC, and, in June 2016, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In January 2018, the Board remanded the claim on appeal for additional development. After accomplishing further action, the agency of original jurisdiction (AOJ) continued to deny the claim (as reflected in a February 2020 supplemental SOC (SSOC)) and returned the claim to the Board. Unfortunately, the Board finds that still further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. As directed, on remand, the AOJ arranged for the Veteran to undergo VA examination of his lumbar spine; such examination was scheduled for December 6, 2019. Evidence of record indicates that the Veteran failed to report. Notably, however, the notice of the examination was not associated with the claims file. Also of note, a copy of the February 2020 SSOC was sent to the Veteran’s address of record. The SSOC was returned to the AOJ due to “insufficient address.” In March 2020 correspondence, the AOJ advised the Veteran that the SSOC was returned as undeliverable but noted that the address had since been discovered. The letter requested that the Veteran contact VA to advise of his current contact information. In this case, there is some question as to whether a notice of the December 2019 VA examination was sent to the Veteran, and there is also some question as to whether any letter which was sent was actually received by the Veteran given the fact that a copy of the SSOC sent to the Veteran’s address of record was returned as undeliverable. Affording the Veteran the benefit-of-the-doubt, the Board finds that, for due process reasons, another remand of this matter is warranted to ensure that the Veteran is scheduled for an appropriate VA examination for his service-connected lumbar spine disability, and that notice of the scheduled examination is sent to his correct, current address of record. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of his increased rating claim. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination—preferably, any notice(s) of examination—sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through May 2018. Accordingly, the AOJ should obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since May 2018. Also, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Adjudication of the increased rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. The matter is hereby REMANDED for the following action: 1. Obtain all outstanding pertinent records of VA evaluation and/or treatment of the Veteran dated since October 2019. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After confirming with the Veteran and/or representative the Veteran’s current, correct address, send the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA spine examination, by an appropriate medical professional. Specifically request that the notification of his scheduled examination is sent to the Veteran at his correct, current address of record. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees) in active motion and passive motion, and on weight bearing, and non- weight bearing, as appropriate. 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 so state and explain why. The examiner should render specific findings as whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which motion-limiting pain begins. For reported flare-ups, the examiner should describe the frequency, duration, characteristics, and severity of functional loss during such flare-ups. To this end, if the Veteran is not examined during a flare-up, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any (or, has disability comparable to) ankylosis of the thoracolumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. The examiner should identify each chronic neurological manifestation of the service-connected lumbar spine disability other than radiculopathy. For each identified manifestation, the examiner should indicate whether such manifestation constitutes a separately ratable disability; and, if so, should provide an assessment of the severity of the manifestation. Further, considering all orthopedic and neurological findings, the examiner should render specific findings for evaluating intervertebral disc syndrome (IVDS)-specifically, comment as to the total duration and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months: (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination—preferably, any notice(s) of examination sent to him by the pertinent medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). In particular, ensure that the notification of the examination was sent to the Veteran’s current, correct address. 7. After accomplishing all requested action, as well as any additional action deemed warranted, adjudicate the claim on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim for increased rating, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim considering all pertinent evidence (to particularly include all that is added to the claim file since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, Counsel 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.