Citation Nr: 21006810 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 02-08 656A DATE: February 5, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine strain prior to February 13, 1992, is remanded. Entitlement to a disability rating in excess of 20 percent for a lumbar spine strain from February 13, 1992, through August 2, 1995, is remanded. Entitlement to a disability rating in excess of 40 percent for a lumbar spine strain from August 3, 1995, and thereafter, is remanded. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an effective date prior to February 9, 2004, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. Entitlement to specially adapted housing is remanded. Entitlement to special home adaptation grant is remanded. Entitlement to helpless child benefits on behalf of the Veteran's son, L.Z.D., on the basis of permanent incapacity for self-support before he attained the age of 18 is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Marine Corps from April 1971 to November 1973; the Veteran was discharged under honorable conditions. The Veteran is a Vietnam Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2001, August 2011, July 2013, and April 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that prior remands have identified the individual seeking helpless benefits as E.Z.D. Evidence, however, demonstrates that the individual seeking these benefits is actually identified as L.Z.D. See VA Examination, dated September 2017. As such, this information has been changed as indicated on the title page. This case was previously before the Board in November 2003, February 2009, April 2010, December 2011, March 2013, June 2014, May 2017, and November 2018. In November 2003, the claims for a disability rating in excess of 40 percent for a lumbosacral disability and entitlement to a TDIU were remanded for further development. In February 2009, the Board denied the Veteran’s claims for a disability rating in excess of 40 percent for his lumbar spine disabilities and his request for a TDIU. The Veteran timely appealed this decision to the Court of Appeals for Veterans Claims (Court). In January 2010, the Veteran’s representative and a representative of VA’s Office of General Counsel (OGC) agreed to a Joint Motion for Remand (JMR); in February 2010, the Court issued an order consistent with the JMR, the February 2009 Board decision was vacated, and it was remanded to the Board for readjudication. In April 2010, the Board remanded the case for further development consistent with the January 2010 JMR. In August 2011, the RO granted the Veteran an award of a TDIU, effective May 25, 2010. In December 2011, the Board remanded the issues of an increased disability rating for his lumbar spine strain and an effective date prior to May 25, 2010, for a TDIU, for further development, to include development consistent with the January 2010 JMR and February 2010 Court order. In March 2013, the Board denied the Veteran’s claims for a disability rating in excess of 40 percent for a lumbar spine strain and an effective date for an award of a TDIU prior to May 25, 2010. The Veteran timely appealed this decision to the Court. In December 2013, the Veteran’s representative and a representative of VA’s OGC entered into a JMR; also in December 2013, the Court issued an order consistent with the JMR, the Board’s March 2013 decision was vacated, and the case was remanded to the Board for further adjudication. The case was, again, remanded for further development consistent with the Court order in June 2014. In May 2017, the case was remanded for further development; this remand included the issues of special adapted housing, special home adaptation grant, and helpless child benefits. In April 2018, the RO assigned an effective date of February 9, 2004, for an award of a TDIU. In November 2018, the Board remanded the issues as outlined on the title page for further development. The case has been returned to the Board for readjudication. The Board finds, unfortunately, further development is necessary for substantial compliance with the Board’s November 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine strain prior to February 13, 1992, is remanded. 2. Entitlement to a disability rating in excess of 20 percent for a lumbar spine strain from February 13, 1992, through August 2, 1995, is remanded. 3. Entitlement to a disability rating in excess of 40 percent for a lumbar spine strain from August 3, 1995, and thereafter, is remanded. 4. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity sciatic nerve radiculopathy is remanded. 5. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity sciatic nerve radiculopathy is remanded. The Board, in November 2018, remanded the aforementioned issues for further development. Specifically, the Board remanded these issues for the RO to obtain a VA examination to determine the nature and severity of the Veteran’s lumbar spine disability, to include the neurological deficits caused thereby. The evidence demonstrates that the RO notified the Veteran that they had partnered with a private company to provide a VA examination to determine the nature and severity of his lumbar spine; he was advised that the private company would contact him to schedule this examination. See Communication, dated September 2019. Documentation in the file indicates that the Veteran did not present himself for his VA examination. See Scheduling Request Cancellation, dated October 2019. The file, however, does not demonstrate that the Veteran was notified of the date or time of his scheduled examination. There is no evidence of a letter or telephonic communication with the Veteran. The Veteran had, previously, attended numerous VA examinations. Moreover, the evidence indicates that the Veteran was hospitalized in November 2019 due to a gastrointestinal bleed. See VA Notification of Hospitalization, dated November 2019. In light of the above, to ensure compliance with the Board’s November 2018 remand directives, these claims should be remanded for the Veteran to make additional attempts to obtain VA examinations to determine the nature and severity of his lumbar spine disability, to include a retrospective opinion if possible. See Stegall, 11 Vet. App. at 271. Proper notice of the examinations to the Veteran must be associated with the claims file. 6. Entitlement to an effective date prior to February 9, 2004, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. 7. Entitlement to specially adapted housing is remanded. 8. Entitlement to special home adaptation grant is remanded. The issues of entitlement to a TDIU prior to February 9, 2004, specially adapted housing, and a special home adaptation grant are inextricably intertwined with the issues as outlined above. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that the final decision on one issue cannot be rendered until a decision on the other issues has been rendered). As such, they must be remanded for contemporaneous readjudication. 9. Entitlement to helpless child benefits on behalf of the Veteran's son, L.Z.D., on the basis of permanent incapacity for self-support before he attained the age of 18 is remanded. In November 2018, the Board remanded the claim for helpless child benefits to obtain outstanding educational records of L.Z.D. and to obtain a VA examination to determine his eligibility as a helpless child. In September 2019, VA requested that the Veteran submit this information. The RO further attempted to schedule a VA examination, but evidence indicates that the Veteran cancelled the examination. See Scheduling Request Cancellation, dated September 2019. However, it is unclear as to how this information was obtained, and there is no evidence that the Veteran was sent written, or received communication as to the date and time of this event. Moreover, the examination was of L.Z.D. and, despite the knowledge of L.Z.D.’s most recent residence, which is not the same as the Veteran’s residence, there is no evidence that the RO attempted to communicate with L.Z.D., or his nearest relation, to schedule his evaluation. See VA Examination, dated September 2017. In light of the above, upon remand, the RO should make appropriate efforts to obtain outstanding documentation and obtain an examination for L.Z.D. See Stegall, 11 Vet. App. At 271. Proper notice of the examination to the Veteran and L.Z.D. must be associated with the claims file. The matters are REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's service-connected disabilities during the period on appeal. After acquiring this information and obtaining any necessary authorizations, the RO should obtain and associate these records with the claims file. The RO should also obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine degenerative disc disease, right lower extremity radiculopathy, and left lower extremity radiculopathy and report all signs and symptoms necessary for rating the disorder. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors, including additional loss of range of motion. The examiner should specifically discuss any additional functional impairment that the Veteran experiences during a flare-up or upon repetitive motion. The examiner's attention is directed to the Veteran's subjective complaints and descriptors of functional limitations during flare-ups, both as expressed during the examination and in the evidence of record. The examiner should test and report the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner is asked to state whether the Veteran's lumbar spine disability has been productive of the following during the appeal period, including since November 1973: pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. The examiner should also address the severity and functional deficits associated with any neurological symptomatology associated with the Veteran's lumbar spine disability, specifically the severity and specific symptomatology of his left and right lower extremity radiculopathy. The examiner should, if possible, opine as to any specific time periods of improvement or worsening of the Veteran’s condition, based upon the Veteran’s subjective statements and the evidence of record. If there is a specific time or times of improvement or worsening of the Veteran’s condition, aside from short term exacerbation and remission, the examiner should clearly indicate this, with a corresponding date, in the examination and support this decision with the evidence of record. If this is not possible, or would require mere speculation, the examiner should clearly express this in the examination and support this assertion with the evidence and/or fully explain based upon medical expertise. The examiner should also opine as to whether the Veteran’s service-connected disabilities alone are so severe as to prevent him from walking (with or without an ambulatory device). The Veteran is competent to attest as to his symptomatology, to include its onset. If there is medical or other evidentiary reason to doubt the veracity of the Veteran’s statements, these should be clearly outlined in the examination. A clear rationale for the opinion must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Request a statement from the Veteran and L.Z.D. outlining L.Z.D.'s school attendance and employment history. All attempts at obtaining these records, to include communication and/or negative responses with the Veteran and L.Z.D., should be clearly outlined in the file. 4. Schedule the Veteran's son, L.Z.D., for an examination to determine whether it is at least as likely as not that he became permanently incapable of self-support by reason of a mental or physical condition prior to attaining 18 years of age. The relevant portions of the claims file and a copy of this remand order must be made available to the examiner. The examiner must address the full history of L.Z.D.'s psychiatric and physical disabilities. If the examiner is unable to provide the requested opinion without resorting to speculation, the reasons for the inability to provide the opinion should be provided. Any missing evidence that would enable the examiner to provide the opinion should also be identified. (Continued on the next page)   5. If the Veteran or L.Z.D. fails to report for a scheduled examination, a copy of the letter notifying the Veteran or L.Z.D. of the examination must be associated with the claims file. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the requested development, and any additional development indicated, the RO must readjudicate the issues on appeal, to include the issues of entitlement to an effective date prior to February 9, 2004 for a TDIU, specially adapted housing, and a special home adaptation grant. If any benefit sought on appeal is not granted, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.