Citation Nr: 21073377 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 09-21 821 DATE: December 8, 2021 ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for thoracolumbar degenerative disc disease (DDD), status post T11-T12 compression fractures (back disability) prior to March 14, 2018, and in excess of 40 percent thereafter. 2. Entitlement to a separate rating prior to October 2, 2013, and to a rating in excess of 10 percent thereafter for right lower extremity radiculopathy secondary to the back disability. REMANDED Entitlement to an initial disability rating in excess of 20 percent for the back disability prior to March 14, 2018, and in excess of 40 percent thereafter is remanded. Entitlement to a separate rating prior to October 2, 2013, and to a rating in excess of 10 percent thereafter for right lower extremity radiculopathy secondary to the back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to April 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2008 and January 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in February 2020 when it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. Historically, the Board remanded these issues in June 2017 for a VA examination. In March 2018 the Veteran was afforded a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). In the February 2020 remand, the Board found that this examination was inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In the March 2018 examination, the examiner found the Veteran had no ankylosis of the spine but also noted that less movement due to ankylosis and adhesions were additional factors contributing to the disability. The Veteran also reported having a mild tingling sensation in the right leg and foot, but the examiner found that she had no radiculopathy and noted normal sensory examination results. The Board found that these findings were contradictory. In response to the February 2020 remand, the Veteran was scheduled for an examination in August 2021; however, she declined the examination for reasons to include as due to concern over exposure to COVID-19. In this case, and in light of the fact that it has been over three years since the last VA examination, the Board finds that the Veteran should be afforded another opportunity to attend an examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination). The Veteran is advised, however, that should she fail to attend the next properly noticed examination without good cause, her claim will be decided based on the existing evidence of record pursuant to 38 C.F.R. § 3.655. In this regard, good cause would include concern over exposure to COVID-19, but if this is the case the Veteran should be advised that the March 2018 examiner, or an appropriate substitute examiner, will then review her claims file and provide a medical opinion regarding the conflicting evidence outlined above. Finally, subsequent to the February 2020 remand, the Veteran submitted a volume of statements, indicating that treatment records might be outstanding/available in this case. As such, these records should be sought on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by her as pertinent to her claims. The Veteran and her representative are to be notified of any unsuccessful efforts in this regard, in order to allow the opportunity to obtain and submit any such records for VA review. 2. Schedule the Veteran for appropriate VA examination(s) for the back disability and radiculopathy. The claims file must be made available to the examiner, including a complete copy of this remand, in conjunction with the examination. The Veteran should be notified that if she fails to attend the next properly noticed examination without good cause, her claim will be decided on the evidence of record and it could be denied as a matter of law. However, the Veteran should be further advised that if she fails to attend the scheduled examination and the reason is her concern over exposure to COVID-19, an examiner will then review her claims file and provide a medical opinion as outlined below. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. If the Veteran does not attend the properly noticed examination and good cause is shown, to include concern over exposure to COVID-19, forward the claims file to the March 2018 examiner, or an appropriate substitute examiner for an addendum opinion. After a review of the claims file, the examiner should provide answers to the following questions: Regarding the Veteran's back disability, the examiner is asked to clarify whether she suffers from any ankylosis. Regarding the Veteran's right lower extremity radiculopathy, the examiner is asked to clarify whether she currently suffers from any radiculopathy associated with her thoracolumbar spine condition. The examiner is asked to opine regarding the severity of such radiculopathy and whether there is any paralysis associated with it. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and her representative a supplemental statement of the case (SSOC) which considers all evidence added since the most recent SSOC and return the case to the Board. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.