Citation Nr: 21062277 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-45 736 DATE: October 6, 2021 REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is remanded. Entitlement to service connection for lupus is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from April 1973 to August 1973 and from September 1974 to March 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen the previously denied claims of service connection for degenerative disc disease of the lumbar spine and lupus, and denied service connection for degenerative disc disease of the cervical spine. This decision was appealed in a notice of disagreement (NOD) received by VA in December 2016. A Statement of the Case (SOC) was issued by VA in August 2017. VA received the appellant's Substantive Appeal (Form 9) in August 2017, perfecting the appeal and requesting a hearing before the Board. The appellant appeared before the undersigned Veterans Law Judge at a videoconference hearing in January 2021. A transcript of that hearing has been added to the record and reviewed in adjudicating these claims. In a March 2021 decision, the Board granted the claims to reopen the previously denied claims for the above disabilities and remanded the claims for further development and re-adjudication of the claims on the merits. A Supplemental Statement of the Case (SSOC) was issued by VA in May 2021 and the claims have been returned to the Board for further adjudication. 1. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. 2. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is remanded. 3. Entitlement to service connection for lupus is remanded. While the Board regrets additional delay, remand is necessary so that the RO can provide the appellant with new VA examinations for each of the claimed disabilities and obtain medical opinions regarding the etiology of each claimed disability. The Board acknowledges that the RO does appear to have attempted to contact the appellant via mail to have him schedule his VA examinations and that the appellant does not appear to have responded to the RO's attempts to schedule him for VA examinations. See April 2021 Subsequent Development Letter. Prior to a July 2021 brief from the appellant's representative, no explanation had been provided by the appellant for this failure to cooperate in scheduling these necessary VA examinations. Typically, the Board would treat this as a failure to cooperate and would decide the claim based on the evidence currently of record, which would in turn result in a denial of the claims. However, the appellant's representative indicated in a July 2021 brief that the appellant did not respond to requests to schedule his VA examinations due to the continuing Covid-19 pandemic, particularly with the surge of the Delta variant over the summer of 2021. The appellant's representative stated that the appellant had safety concerns regarding the scheduling and administration of the necessary VA examinations. The appellant's representative also contended that VA's duty to assist should have included additional efforts to schedule the appellant and to reach out to him directly to address any concerns he had with appearing for an examination in person. The Board notes that it is not clear whether the appellant was afforded the option of appearing for the examinations via tele-health if possible. Considering the unique circumstances presented by the ongoing Covid-19 pandemic, and the assurance from the appellant's representative that the appellant would appear for a VA examination with the appropriate safety precautions in place, the Board finds that remand is necessary so that the appellant may be afforded another chance to cooperate in the development of his claim. However, the appellant and his representative are reminded that it is the appellant's duty to cooperate in the development of his claim, including attending scheduled examinations. Although VA has a duty to assist the appellant in the development of his claim, such duty is not "a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Rather, the appellant also has an obligation to assist in the adjudication of his claim, to include responding to correspondence from VA, attending scheduled examinations, and providing requested information. "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 195. A failure to respond to attempts to schedule an examination or to otherwise cooperate with the development of this claim will be treated as a failure to report for a VA examination without good cause and the claim will be decided on the evidence of record. See 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Schedule the appellant for a VA examination for his claimed thoracolumbar disability. The examiner must review the claims file. If a diagnosis cannot be provided but the appellant's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the thoracolumbar disability, identified as DDD of the lumbar spine in a May 2009 MRI, at least as likely as not related to service, including multiple in-service reports of low back pain, diagnosed in service as recurrent low back strain and noted at separation. Provide a rationale to support the opinion. The examiner must address the November 2016 medical opinion from the appellant's treating VA physician that the appellant's records suggest his back pain might be related to service. In providing the requested opinion, consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms. Statements supporting this claim can be found in the appellant's October 2016 Notice of Disagreement and his August 2017 Form 9. If there is any medical reason to accept or reject the proposition that the appellant's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the DDD of the lumbar spine (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is reminded there is no requirement that the disability have been specifically diagnosed in service. Rather, the examiner should discuss whether the symptoms reported in service could at least as likely as not be an undiagnosed manifestation of the current disability. 2. Schedule the appellant for a VA examination for his claimed cervical spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the appellant's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the cervical spine disability, manifesting with neck pain, at least as likely as not related to service, including an in-service report of neck pain following an injury in October 1974. Provide a rationale to support the opinion. In providing the requested opinion, consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms. Statements supporting this claim can be found in the appellant's October 2016 Notice of Disagreement and his August 2017 Form 9. If there is any medical reason to accept or reject the proposition that the appellant's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the DDD of the cervical spine (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is reminded there is no requirement that the disability have been specifically diagnosed in service. Rather, the examiner should discuss whether the symptoms reported in service could at least as likely as not be an undiagnosed manifestation of the current disability. 3. Schedule the appellant for a VA examination for his claimed lupus. The examiner must review the claims file. If a diagnosis cannot be provided but the appellant's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the appellant's lupus at least as likely as not related to service, including the appellant's 1976 bloodwork results and/or his noted diagnosis of tinea versicolor on his separation examination. The examiner must discuss the opinions offered by the appellant's VA treating dermatologist which posit that the appellant's lupus first developed in-service. Provide a rationale to support the opinion. (Continued on the next page) In providing the requested opinion, consider the appellant's description of his in-service and post-service symptoms. Statements supporting this claim can be found in the appellant's October 2016 Notice of Disagreement and his August 2017 Form 9. If there is any medical reason to accept or reject the proposition that the appellant's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the Veteran's lupus (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is reminded there is no requirement that the disability have been specifically diagnosed in service. Rather, the examiner should discuss whether the symptoms reported in service could at least as likely as not be an undiagnosed manifestation of the current disability. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.