Citation Nr: 21015371 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-15 095A DATE: March 17, 2021 REMANDED Entitlement to service connection for a left hip disability, to include a left leg length discrepancy, is remanded. Entitlement to a disability rating in excess of 40 percent for a low back disability is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1991 to February 1993. The Veteran’s claim was most recently before the Board in January 2019 wherein it was remanded for additional development. While this development was attempted, the Board finds another remand is required. 1. Entitlement to service connection for a left hip disability, to include a left leg length discrepancy, is remanded; 2. Entitlement to a disability rating in excess of 40 percent for a low back disability is remanded; 3. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded; and, 4. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. The January 2019 remand outlined the reasons why a remand for examinations of the above conditions was required. Per the Veteran’s claims file, an examination request was generated September 22, 2019. In records dated September 25 and 26, 2019, the examinations were cancelled because “Veteran Refused Exam.” There is no further explanation as to any contact or development related to the proposed, refused, and ultimately canceled examinations. As the January 2019 remanded for examinations and the Veteran’s claims have not been previously remanded for the Veteran’s failure to appear for examinations, the Board finds that the claims should be remanded again so that the Veteran can have the opportunity to accept and appear for the examinations. The Veteran’s representative requested as much in the August 2020 brief. The Board wishes to emphasize that, “[t]he duty to assist in the development and adjudication of a claim is not a one-way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of appellants to cooperate with VA. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). Therefore, the Veteran is on notice of the potential consequences for failing to attend a VA examination in the future. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Since this matter is inextricably intertwined with the remanded issues above, adjudication must be deferred pending completion of the proposed development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2020 to the present. 2. Schedule the Veteran for a VA examination of her left hip. The examiner should identify all disabilities relevant to the Veteran’s left hip. The Veteran’s claims file must be made available to, and reviewed by the examiner. The examiner must take a history from the Veteran as to the progression of the claimed left hip disability. Upon review of the record, interview and examination of the Veteran, the appropriate examiner should respond to each of the following: (a). Please identify any left hip disability. The examiner should consider the Veteran’s claim that the pain from her service-connected low back disability caused her left leg and hip to draw upwards, resulting in her left leg length discrepancy, and VA treatment records documenting left hip lateral deviation and antalgic gait pattern, hip hiking pattern, pelvic shifting to the left, and decreased stride length of the left lower extremity. (b). Is it at least as likely as not (50 percent or greater probability) that any left hip disability had onset in, or is otherwise related to the Veteran’s period of active service? (c). Is it at least as likely as not (50 percent or greater probability) that any diagnosed left hip disability is (i.) caused or (ii.) aggravated by her service connected low back disability, to include by altered gait, balance, or posture, or other altered body mechanics that resulted from her service-connected low back disability? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Schedule the Veteran for a VA back examination to assess the current severity of her service-connected low back disability. Please provide all pertinent orthopedic and neurologic manifestations and symptomatology of the service-connected low back disability. The examiner should comment on the impact of the Veteran’s service-connected low back disability on her capacity to perform work or work-like activities. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements 3. After completing the above requested actions, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and given an opportunity to respond. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.