Citation Nr: 21015555 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-41 208A DATE: March 17, 2021 ORDER An increased rating in excess of 20 percent for degenerative disc disease (DDD), and degenerative facet joint disease of the lumbar spine with spondylolisthesis of L5, status-post lumbar laminectomy L5, status-post posterior lumbar spinal fusion (lumbar spine disability) is denied. An increased rating in excess of 20 percent for right lower extremity, radiculopathy, associated with the lumbar spine disability, is denied. REMANDED A higher initial rating in excess of 30 percent for anxiety disorder, not otherwise specified, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Board finds the Veteran failed to report, without good cause, for VA examinations for his increased rating claims for a lumbar spine disability and associated radiculopathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability is denied. 38 U.S.C. § 1155; 38 C.F.R. § 3.655; see Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy, associated with the lumbar spine disability, is denied. 38 U.S.C. § 1155; 38 C.F.R. § 3.655; see Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 2001 to August 2004. This appeal arises from a January 2013 rating decision, denying increased rating claims for lumbar spine DDD in excess of 20 percent and associated radiculopathy of the right lower extremity in excess of 30 percent. The January 2013 rating decision also granted service connection for anxiety disorder, and assigned an initial 30 percent rating; the Veteran appealed for a higher initial rating. A February 2014 rating decision denied the Veteran’s claim for a TDIU. In February 2020, the Board remanded the case to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. Increased Rating 1. An increased rating in excess of 20 percent for lumbar spine 2. An increased rating in excess of 20 percent for right lower extremity, radiculopathy By history, a February 2008 RO rating decision granted service-connection for the Veteran’s lumbar spine disability and assigned an initial 20 percent rating; and granted service connection for radiculopathy of the right lower extremity, associated with the lumbar spine disability, and assigned an initial 0 percent rating. The right lower lumbar radiculopathy was increased to 10 percent in an August 2010 rating decision, and to 20 percent in the January 2013 rating decision on appeal. In March 2012, the Veteran filed increased rating claims for these disabilities. Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). Under 38 C.F.R. § 3.655, 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. However, 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 (b). As noted above, in February 2020, the Board remanded the increased rating claims for the lumbar spine disability and radiculopathy to obtain a VA examination on the current severity of these disabilities. The Veteran, however, failed to report for the scheduled VA examinations of his lumbar spine disability and radiculopathy in March 2020. Neither the Veteran nor his representative has asserted that he did not receive notice of the examination. There is no indication the Veteran’s address has changed. The Veteran was sent other VA correspondence to his address of record, both before and after his scheduled examinations in late March 2020. An AOJ letter earlier in March 2020 notified the Veteran he would be contacted by a private facility, by phone and/or letter, to schedule his upcoming examinations on the current severity of his disabilities. Both this letter and the August 2020 SSOC was sent to the same address where numerous correspondence from the RO had been previously sent and not returned as undeliverable. The Board thus concludes that the Veteran was properly notified of the scheduled examinations. There is a presumption of regularity under which it is presumed that government officials ‘have properly discharged their official duties.’ Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). In this case, the presumption of regularity applies and there is no evidence to rebut the presumption of regularity. In fact, neither the Veteran nor his representative has raised any argument in this regard, to include any assertion that the Veteran did not receive notice of the scheduled examinations. See Baxter v. Principi, 17 Vet. App. 407, 410-11 (2004). The Board notes the duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran and his attorney have not provided any additional explanation for his failure to attend the scheduled VA examinations or that he tried to reschedule a VA examination. Consequently, the Board finds the Veteran failed to report for his VA examination for his increased rating claims for low back and radiculopathy claims, without any good cause shown. 38 C.F.R. § 3.655 (b). The Board concludes the claims must be denied as a matter of law. 38 C.F.R. § 3.655 (b); See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. A higher initial rating in excess of 30 percent for anxiety disorder Notably, the last VA mental disorders examination of record was in January 2015. The Board had remanded the appeal for another VA examination to assess the severity of the service-connected anxiety disorder. On remand, the Veteran failed to report for a scheduled VA examination in June 2020 without good cause, so that another examination is not required for a claim for a higher initial rating. 38 C.F.R. § 3.655 (a) and (b). Nonetheless, the Board finds it would be helpful for the January 2015 VA mental disorders examiner to provide an addendum opinion on the severity of the Veteran’s anxiety disorder, upon an opportunity to review additional mental health records associated with the claims file. In this regard, the Veteran submitted a September 2019 private psychiatric Disability Benefits Questionnaire (DBQ) as well as a March 2015 private vocational rehabilitation counselor’s report. There are also VA and private psychiatric treatment records, indicating psychiatric admissions for suicidal ideations in 2019. 2. Entitlement to a TDIU. The TDIU issue is inextricably intertwined with the anxiety claim, inasmuch as both concern the occupational impairment due to the service-connected anxiety disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated the Veteran for his psychiatric disability. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. Obtain any additional VA treatment records dated from August 2020 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. Obtain an updated addendum opinion by the January 2015 VA examiner (or if not available, a similarly qualified clinician) for consideration of VA and private treatment records, dated from January 2015 to the present; March 2015 private vocational rehabilitation counselor’s report; and the September 2019 private psychologist’s Disability Benefits Questionnaire. The examiner should indicate that the record was reviewed. If the examiner determines that another in-person examination is required, then such an examination should be scheduled. On review of the record, the examiner should update and/or confirm the findings recorded in the January 2015 VA mental disorders examination. Rationale must be provided for the opinions proffered. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.