Citation Nr: 21024424 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-06 800A DATE: April 22, 2021 REMANDED Entitlement to service connection for major depressive disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to an initial compensable rating for headaches is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of right lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of upper back is remanded. Entitlement to an initial rating in excess of 20 percent for DDD of lower back is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1988 to September 1988 and from March 1989 to September 1992. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2018. A transcript of that hearing has been associated with the claims file. 1. Entitlement to service connection for major depressive disorder, to include as secondary to service-connected disabilities, is remanded. 2. Entitlement to an initial compensable rating for headaches is remanded. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of right lower extremity is remanded. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of left lower extremity is remanded. 5. Entitlement to an initial rating in excess of 20 percent for DDD of upper back is remanded. 6. Entitlement to an initial rating in excess of 20 percent for DDD of lower back is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, in the August 2018 Board decision, the regional office (RO) was directed to provide the Veteran with VA examinations. VA examinations were scheduled for the Veteran on July 18, 2019. The Veteran did not appear for the VA examinations. However, there is no evidence in the claims file that the Veteran was notified of any examination. Rather, a June 2019 Compensation and Pension Exam Inquiry notes only that the Veteran failed to report for the scheduled examinations without further explanation. As a result, the Board will remand the claims for VA examinations. Although the Board is sympathetic to the likelihood that the Veteran was not informed of the previously scheduled VA examinations, the Board reminds the Veteran that she has a duty to attend VA examinations to aid in the development of her claim and that VA’s duty to assist in the development and adjudication of the claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, a remand is necessary to provide the Veteran VA examinations as directed in the August 2018 Board decision. The matters are REMANDED for the following action: 1. Provide the Veteran with an addendum VA opinion by a qualified VA professional for mental disorders, specifically major depressive disorder. If additional VA examination is deemed necessary, such shall be obtained. If an examination is scheduled and the Veteran does not attend, the examiner must offer the requested opinions based on a review of the record. The examiner must review the record in its entirety and opine whether the Veteran’s diagnosed mental disorder is at least as likely as not: (1) proximately due to service-connected upper back, lower back, right hand, lower extremity, or headache disabilities, or (2) aggravated beyond its natural progression by service-connected upper back, lower back, right hand, lower extremity, or headache disabilities. The examiner must specifically consider the Veteran’s contentions in the context of any negative opinion. 2. Provide the Veteran with a VA examination by a qualified VA medical professional for headaches. The examiner is to clarify the January 2015 findings regarding whether the Veteran’s symptoms classify as prostrating attacks and must provide a rationale. The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to headaches alone and discuss the effect of the Veteran’s headaches on any occupational functioning and activities of daily living. If it is not possible to provide a specific opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral lower extremity radiculopathy alone and discuss the effect of the Veteran’s bilateral lower extremity radiculopathy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination of the current severity of her DDD of the lower and upper back. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the upper and lower back. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to DDD of the lower back and upper back alone and discuss the effect of the Veteran’s DDD of the lower back and upper back on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.