Citation Nr: 21076520 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 10-16 789 DATE: December 27, 2021 REMANDED Entitlement to higher initial ratings for intervertebral disc disease at L4-L5 and at L5-S1, rated as 10-percent disabling prior to November 14, 2016 and as 20-percent disabling thereafter, with periods of nonpayment due to active-duty service. REASONS FOR REMAND The Veteran served on active duty from November 1996 to June 1997, from November 1998 to May 1999, from April 2008 to September 2008, from September 2011 to January 2012, and from March 2012 to April 2014. The case is on appeal from a January 2009 rating decision. A June 2014 rating decision recharacterized the disability as intervertebral disc disease L4-L5 and L5-S1. In a March 2017 rating decision, the RO assigned a 20 percent disability evaluation, effective November 14, 2016. This decision constituted a partial grant of the benefits sought on appeal; however, the issue remained on appeal. The Board remanded the claim in October 2012, July 2016, and July 2017 for further development. In June 2018, the Board denied the claim. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 Joint Motion for Remand (JMR), the parties moved to vacate and remand the Board's decision denying entitlement to a higher initial rating for IVDS, rated as 10 percent disabling prior to November 14, 2016, and as 20 percent disabling thereafter, with periods of nonpayment due to active-duty service. In a June 2021 Order, the Court granted the JMR and remanded the matter to the Board for further appellate review consistent with the Order. The claim was last before the Board in November 2019. At that time, the Board remanded the claim for further development. Entitlement to higher initial ratings for intervertebral disc disease at L4-L5 and at L5-S1, rated as 10-percent disabling prior to November 14, 2016 and as 20-percent disabling thereafter, with periods of nonpayment due to active-duty service. The Veteran contends that his lumbar spine disability is more disabling than reflected by the initial 10 percent rating assigned prior to November 14, 2016, and 20 percent rating assigned thereafter. The Board notes that the record reflects the Veteran failed to report for a VA examination scheduled in September 2021. However, later that month, the Veteran attended a VA psychiatric examination via video hearing during which he was found incompetent by the examiner. Additionally, the Veteran is currently rated at 100 percent disabled. Further, correspondence from the Veteran's representative in November 2021 demonstrated the Veteran's intention to show up to a VA examination if he knows about it. Individuals for whom an examination has been scheduled are required to report for the examination. See 38 C.F.R. § 3.326(a). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause fails to report for such examination, or reexamination, action in accordance with this section shall be taken. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. In this case, the Board finds good cause for the Veteran's failure to report for the examination. In view of the evidence, the Veteran should be afforded a VA examination reassessing the severity of the Veteran's lumbar spine disability. In light of the remand, any outstanding VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since August 2021. 2. Thereafter, schedule the Veteran for VA examination (or a telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. - All necessary testing and evaluation, including range of motion studies, should be conducted, and all findings reported in detail. The range of motion testing must be provided on active motion, passive motion, weight-bearing, and non-weight-bearing, unless it is not reasonably feasible; if it is not reasonably feasible, the examiner should state the reason. The findings should be reported in terms of degrees. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which pain begins. - The examiner must then provide specific findings as to the range of motion after three repetitions of movement, and state whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination. Any additional loss of range of motion upon repetitive motion testing should be noted in terms of degrees of motion lost as well as additional symptomatology which results, if possible. - Then, after reviewing the Veteran's complaints and medical history, and through interview of the Veteran, provide an opinion regarding whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination during flare-ups. The Veteran's reports of the effects, frequency and duration of flare-ups should be recorded with as much specificity as possible. Specifically, any additional loss of motion of the lumbar spine during a flare-up should be noted in terms of approximate degrees of motion lost as well as additional symptomatology which results, if possible. - If the examiner determines that the Veteran has no range of motion during repeated use over time and during flare-ups, the examiner should opine as to whether this lack of motion qualifies as functional ankylosis. A rationale for all opinions expressed should be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, Associate 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.