Citation Nr: 21006728 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-10 299 DATE: February 5, 2021 REMANDED Entitlement to service connection for degenerative arthritis of the shoulders is remanded. Entitlement to service connection for degenerative arthritis of the spine is remanded. Entitlement to service connection for degenerative arthritis of the hips is remanded. Entitlement to service connection for degenerative arthritis of the knees is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1988 to February 1989, January 1991 to October 1991, and September 2000 to May 2001. These matters were last before the Board in September 2018, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a December 2020 supplemental statement of the case continuing the denial of all six claimed condition, the case was returned to the Board for its adjudication. The Board in its September 2018 remand instructions directed the AOJ to schedule the Veteran for examinations to evaluate the nature and likely etiology of the claimed conditions. A January 2020 note indicates that the Veteran failed to report for the examinations he was scheduled for. Thereafter, an April 2020 memorandum of record shows that the Veteran reported that he had been occupied with caring for his daughter for the previous six months and was unable to attend the scheduled examinations; he also requested that the scheduled examinations be rescheduled. A review of the claims file does not show any subsequent correspondence from the AOJ or determination by the AOJ responsive to this rescheduling request. In the December 2020 supplemental statement of the case, the AOJ denied entitlement to service connection for all six claimed conditions after noting that the Veteran failed to appear for the scheduled examinations. Although the Board acknowledges that it is within the AOJ’s authority to proceed with adjudication of a claim in those instances where a Veteran has missed a scheduled examination and has not provided “good cause” for why the examination was missed, the Veteran clearly has attempted to justify why he missed the scheduled examinations, and this explanation was wholly overlooked by the AOJ in the December 2020 supplemental statement of the case. Under these circumstances, the Board finds that VA has not complied with its duty to assist the Veteran in his appeal. Therefore, these matters must be remanded to the AOJ in order for it to reschedule the Veteran for the previously requested examinations pursuant to the Board’s prior September 2018 remand instructions, which are copied in large part below. See Stegall v. West, 11 Vet. App. 268 (1998). As an additional matter, the Board notes that the Veteran was recently afforded a VA spine examination in December 2020 in support of his unrelated claims seeking an increased rating for his service-connected multilevel lumbar spondylosis with herniated disc as well as left lumbar radiculopathy. To be clear, the Board does not find that this examination fulfills its prior remand request, as this examination did not address the specific queries outlined by the Board in the present appeal. For one, the December 2020 examination did not set forth a diagnosis of degenerative arthritis of the spine, and so it is unclear whether a separate diagnosis and rating are warranted for this specific claimed condition. Moreover, even if a separate diagnosis was endorsed by a VA examiner, there is no opinion of record addressing the likely etiology of any such diagnosed condition. Similarly, with regard to the already service-connected left lumbar radiculopathy, the diagnostic code utilized by the AOJ concerns incomplete paralysis of the sciatic nerve, thus leaving open the possibility that the Veteran may exhibit radiculopathy of other nerves, let alone incomplete paralysis of the sciatic nerve of right lower extremity. Accordingly, the Board finds that a remand for the degenerative arthritis of the spine claim and the bilateral lower extremity radiculopathy claim is still necessary. Additional language regarding these two claims has been added to the prior remand instructions reproduced below. The matters are REMANDED for the following action: Schedule the Veteran for a VA medical examination to determine if he is diagnosed with shoulder, spine, hip, and knee conditions, as well as peripheral neuropathy and radiculopathy of the bilateral lower extremities. The Veteran’s entire claims file, including a copy of this remand, must be made available to the examiner for review. The VA examiner should confirm the claims file review. All necessary diagnostic testing should be completed prior to setting forth any opinion as to the likely etiology of any of the claimed conditions on appeal. In providing the Veteran with an examination to evaluate the nature of the claimed spine and bilateral lower extremity radiculopathy conditions, the Board acknowledges that the Veteran is already service-connected for multilevel lumbar spondylosis with herniated disc as well as left lumbar radiculopathy. As such, the chosen examiner is asked to determine whether there is a diagnosable spine condition separate and distinct from the multilevel lumbar spondylosis, to include whether a separate diagnosis for a cervical spine condition is warranted. In addition, the chosen examiner is asked to determine whether there is diagnosable right lumbar radiculopathy of the sciatic nerve as well as whether there is diagnosable lower extremity radiculopathy impacting any nerve other than the sciatic nerve. If these specific diagnoses are not support by the evidence, the examiner must provide a thorough explanation that attributes all of the Veteran’s claimed spine and lower extremity neurological symptomatology to diagnosable conditions. Furthermore, any dismissed diagnosis must be reconciled with the October 2005 private treatment record in which the Veteran’s physician noted that he had arthritic changes at the shoulders, hips, knees, and spine. If any of the above-claimed conditions is diagnosed following testing, the examiner is requested to opine whether it is at least as likely as not (a 50 percent probability or greater) that these conditions are directly related to active military service. A complete rationale is required for all opinions. The Board notes the anatomical distinctions between the musculoskeletal and neurologic conditions listed above and recognizes that separate examinations may be necessary in this case. However, the Board leaves this to the discretion of the RO and/or the examining medical facility. In addition, the Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. To the extent that telehealth technology permits an alternative to an in-person examination, such opportunity is fully acceptable in lieu of an in-person examination. 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.