Citation Nr: 21077371 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-31 577 DATE: December 29, 2021 REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease of the cervical spine is remanded. Entitlement to a rating in excess of 60 percent for post-operative residuals of a herniated nucleus pulposus of L3-4-5 is remanded. Entitlement to a rating in excess of 20 percent for muscle spasms of the right arm is remanded. Entitlement to a rating in excess of 20 percent for muscle spasms of the left arm is remanded. Entitlement to a rating in excess of 10 percent for right lateral ankle tendinopathy is remanded. Entitlement to a total disability rating on the basis of individual unemployability as due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1980 to September 2000. This matter was last before the Board in January 2020, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. In addition to attempting to secure the records requested by the Board, the AOJ scheduled the Veteran for VA examinations in June 2021 in support of some of his claims, and this new evidence was addressed in an October 2021 supplemental statement of the case continuing the denial of all claims on appeal. Thereafter, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a November 2019 hearing before the undersigned Veterans Law Judge. 1. Entitlement to an increased rating for degenerative disc disease of the cervical spine is remanded. 2. Entitlement to an increased rating for post-operative residuals of a herniated nucleus pulposus of L3-4-5 is remanded. 3. Entitlement to an increased rating for muscle spasms of the right arm is remanded. 4. Entitlement to an increased rating for muscle spasms of the left arm is remanded. 5. Entitlement to an increased rating for right lateral ankle tendinopathy is remanded. 6. Entitlement to TDIU is remanded. 7. Entitlement to (SMC) based on the need for regular A&A of another person is remanded. The Board remanded all 7 issues previously before it in order to address a specific challenge by the Veteran's representative in November 2019 as to the competency of the VA examiner who administered the March 2015 general medical examination as well as the VA examiner who administered the back, neck, ankle and peripheral nerve examinations in February 2017. Pursuant to Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019), the Board was compelled to remand all 7 issues in order to obtain further information regarding the qualifications of the individuals who administered these examinations. As specified in the Board's remand directives, the AOJ was instructed to secure the curriculum vitae of both of the examiners as well as any additional credentialing information. The claims file contains internal correspondence reflecting the actions taken by the AOJ in pursuit of the credentialing information requested by the Board. To begin, a copy of an February 2020 email correspondence reflects that the AOJ made an initial request for this information that identified the individuals by name who administered the highlighted examinations in March 2015 and in February 2017. Without detailing the specific exchanges between VA employees in their attempts to secure the requested credentialing information, the Board notes that a November 2020 memorandum for the record includes a copy of the curriculum vitae of the individual who administered the March 2015 examination. The claims file also contains a copy of an email correspondence dated in November 2020 wherein the AOJ made a further request for the credentialing information corresponding to the individual who administered the February 2017 examinations. To date, and to the extent of the Board's knowledge, a copy of the curriculum vitae or any other credentialing information of the individual who administered the February 2017 examinations has not been associated with the claims file. Confusingly, the Board notes that the AOJ sent the Veteran a letter in December 2020 informing him that no credentialing information for the March 2015 examiner has been associated with the claims file, despite the fact that her curriculum vitae was of record as of the date of the letter. Furthermore, an internal memorandum dated in November 2020 reflects that a representative from the company that administers examinations on a contract basis on behalf of VA reported that the requested credentialing information for the two identified examiners had already been provided to VA. Despite this evidence suggesting that there is additional credentialing information available, the Board cannot find any documentation reflecting that the AOJ made further attempts to secure this information, other than associating the March 2015 examiner's curriculum vitae with the record. The Board finds that remand is therefore necessary to confirm that all reasonable attempts were made to secure the credentialing information for the two examiners who administered the March 2015 and February 2017 examinations, respectively. Moreover, the Board highlights that VA's duty to assist the Veteran in developing his claim is not necessarily satisfied by simply associating the curriculum vitae of an examiner with the claims file. See Francway, supra. As such, if there is any indication that additional information is available that adds further clarification concerning the qualifications of both identified examiners to administer the examinations at issue, to include training materials and certifications, the AOJ should take all reasonable steps to acquire this information. The previous remand instructions are copied in large part below as they were not substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). A decision on the issues of entitlement to TDIU as well as entitlement to SMC on the basis of the need for A&A are both deferred pending resolution of the increased rating claims also being remanded, as such claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Appropriate action must be taken to respond to the requests from the representative for copies of the curriculum vitae and other credentialing documents for the VA examiner who conducted the March 2015 general medical examination, as well as the credentialing documents for the VA examiner who conducted the February 2017 back, neck, peripheral nerves, and ankle examinations. The Board highlights that VA's duty is not necessarily satisfied simply by securing the curriculum vitae of the identified examiners and associating these documents with the claims file. Accordingly, the AOJ should take all reasonable steps to identify, secure and add to the claims file any additional information reflecting the qualifications of the identified examiners, specifically as it pertains to the examinations they administered in March 2015 and February 2017, respectively. After obtaining this credentialing documentation, associate it with the record and provide the Veteran and his representative a copy thereof. If the requested curriculum vitae and other credentialing documentation is not obtainable, the Veteran and his representative should be notified, and the reasons for such should be documented in the record, before this case is readjudicated in a Supplemental Statement of the Case and returned to the Board. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.