Citation Nr: 21032054 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-06 532A DATE: May 25, 2021 REMANDED The issue of an increased rating for left upper extremity radiculopathy since July 19, 2013, is remanded. REASONS FOR REMAND The Veteran served in the U.S. Navy from March 1983 to October 1990. The issue of an increased rating for left upper extremity radiculopathy since July 19, 2013, is remanded. On July 19, 2013, VA received the Veteran's claim of an increased rating for his cervical spine. In August 2013, VA also received a claim of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) on which the Veteran listed several disabilities, including his cervical spine disorder. A May 2014 rating decision, in pertinent part, continued the Veteran's 20 percent rating for the service-connected left upper extremity radiculopathy. In July 2014, the Veteran submitted a timely notice of disagreement (NOD) solely appealing the issue of the left upper extremity radiculopathy. In March 2015, the RO issued a statement of the (SOC) regarding an increased rating for the left upper extremity and the Veteran subsequently perfected an appeal. In a June 2016 rating decision, the RO increased the Veteran's left upper extremity rating to 30 percent effective March 18, 2016. Prior to that date, the Veteran's disability was rated as left upper extremity incomplete paralysis under diagnostic code 8513. Effective March 18, 2016, the disability was recharacterized as left upper extremity cervical radiculopathy and the disorder was rated under diagnostic code 8510. The January 2019 Board decision seemed to limit the period on appeal to only that period beginning March 18, 2016. Given that nerve symptoms must be separately rated as part of the cervical spine disorder and given that the RO addressed the issue of an increased rating for the left upper extremity radiculopathy in the May 2014 rating decision and the Veteran subsequently perfected an appeal, the Board finds that the left upper extremity radiculopathy is part of the increased rating for the cervical spine and has been on appeal since VA received his claim for an increased rating for the cervical spine on July 19, 2013. In January 2019, the Board denied a rating of more than 30 percent for left upper extremity radiculopathy. The Veteran subsequently appealed to the United States Court of Appeals for Veterans' Claims (Court). In October 2019, the Court granted the parties' Joint Motion for Remand (JMR), vacated the January 2019 Board decision, and remanded the appeal to the Board. In May 2020, the Board remanded the appeal. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The October 2019 JMR stated that the January 2019 Board decision relied on May 2016 VA hand and finger and VA cervical spine examinations which did not address potentially relevant information as to the severity of the Veteran's left upper extremity nerve symptoms. In May 2020, the Board remanded the appeal, in part to obtain a VA peripheral nerves examination. The record indicates that the Veteran was scheduled for a VA examination but that it was canceled at the Veteran's request because he was already rated 100 percent and did not understand the reason for a new examination. Remand is necessary to explain to the Veteran that VA has an obligation to comply with the terms of the JMR which resulted from his appeal of the prior denial. He has an obligation to assist VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO must make one more attempt to conduct the peripheral nerves examination. The Veteran is advised that he has an obligation to comply with VA's request for an examination in order that VA can comply with the JMR which was agreed on by he and VA. If he no longer wishes to pursue this appeal, he must expressly withdraw it. 2. Schedule the Veteran for a VA peripheral nerves examination to obtain an opinion as to the current nature of his left upper extremity radiculopathy. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 3. Send the Veteran a letter informing him of the date, time, and location of the scheduled VA peripheral nerves examination and informing him that he must report for the examination unless unable to do so. The letter must explain how he can reschedule the examination if he is unable to report for it. A copy of the letter must be associated with the file. The Veteran is advised to inform VA if he is unwilling to report for the examination. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.