Citation Nr: 21029690 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-26 840 DATE: May 14, 2021 REMANDED The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded for further development. REASONS FOR REMAND The Veteran served on active duty from October 1991 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of the Veteran's claims file currently resides with the Saint Petersburg, Florida RO. In December 2018, the Veteran and his fiancé, C.C., testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in April 2019, the Board found that a rating reduction of the Veteran's service-connected degenerative disk disease of the lumbar spine from 40 percent to 10 percent, effective May 1, 2013, was improper. Accordingly, the Board restored the Veteran's 40 percent rating. Lastly, the Board remanded the issue of entitlement to a TDIU. The case has now returned to the Board. TDIU Although the Board regrets the additional delay, it finds that remand is again warranted as the Agency of Original Jurisdiction (AOJ) did not substantially comply with the April 2019 remand directives, contrary to the Court of Appeals for Veterans Claims' holding in Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in April 2019, the Board directed the AOJ to provide the Veteran with a VA examination with respect to his service-connected lumbar spine disability. The examination was to address the functional effects of this disability, including the types ot tasks that were precluded by the disability and those that remained feasible. Following the Board's remand, the AOJ issued an examination scheduling request in December 2019 to a private medical contractor. Thereafter, in January 2020, a document was associated with the Veteran's claims file indicating that the requested examination was cancelled due to the Veteran's failure to appear. However, it is unclear from the record whether the Veteran received actual notice of this examination. Indeed, there is no correspondence in the claims file notifying the Veteran that a private medical facility would be contacting him to schedule a VA examination regarding his lumbar spine. Additionally, documentation of subsequent communications informing him of the scheduled time and place of the examination is not located in the claims file. Due to this lack of documentation regarding the scheduling of the examination, the Board finds that good cause has been demonstrated such that the Veteran should be afforded an additional opportunity to attend a VA examination regarding his lumbar spine. See 38 C.F.R. § 3.655(a). Accordingly, entitlement to a TDIU is remanded. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician regarding his service-connected lumbar spine disability. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Any disability benefits questionnaires (DBQs) deemed relevant by the examiner should be completed. All indicated tests and studies should be performed and the results reported in detail. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected lumbar spine disability, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: (a.) Frequency; (b.) Duration; (c.) Precipitating factors; and (d.) Alleviating factors. The examiner should also comment upon the functional effects of the Veteran's service-connected lumbar spine disability, including the types of tasks, work-related or otherwise, that could be precluded and those that could remain feasible. A report of the examination should be prepared and associated with the Veteran's claims file. A complete rationale must be provided for any opinions rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why this is so. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.