Citation Nr: 21032090 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-49 964A DATE: May 25, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected degenerative arthritis of the cervical spine is remanded. Entitlement to an initial rating in excess of 40 percent for service-connected cervical radiculopathy of the left upper extremity is remanded. Entitlement to an initial compensable rating for service-connected headaches is remanded. REASONS FOR REMAND The Veteran had active service from November 1979 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 (granting service connection for degenerative arthritis of the cervical spine) and August 2016 (granting service connection for headaches and cervical radiculopathy of the left upper extremity) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2020. In that decision, the Board remanded the instant claims along with remanding claims for a rating in excess of 10 percent for residuals of a meniscus tear of the right knee and an initial increased rating claim for major depressive disorder. A March 2021 rating decision granted the claim for an initial increased rating of service-connected major depressive disorder, increasing the initial disability rating to 100 percent. As this is considered a full grant of the benefit sought, there remains no claim or controversy over which the Board has jurisdiction as to this issue. The Board remanded the claim for a rating in excess of 10 percent for service-connected residuals of meniscus tear of the right knee pursuant to Manlincon v. West, 12 Vet. App. 238, 240 (1999). A statement of the case as to that claim was issued in March 2021. The Veteran has not yet perfected an appeal of that issue, and accordingly, it is not presently a matter before the Board. As to the claim for an initial rating in excess of 20 percent for degenerative arthritis of the cervical spine (hereinafter generally referred to as, "cervical spine"), the Board remanded the claim for consideration of new pertinent VA treatment records added to the file as well as a November 2017 examination report that was not included in the August 2016 statement of the case. A March 2021 rating decision increased the disability rating from 20 to 30 percent, effective November 14, 2017. The claim for an initial rating in excess of 40 percent for service-connected cervical radiculopathy of the left upper extremity (hereinafter generally referred to as, "radiculopathy") was also remanded for consideration of the November 2017 examination, which was not listed in the May 2019 statement of the case. Finally, the claim for an initial compensable rating for service-connected headaches was remanded for the purpose of providing an opportunity for a VA examination, as the disability had last been evaluated in August 2016. The Board notes the prior procedural history in this matter and sincerely regrets any further delay. However, as explained below, an additional remand of each of the instant claims is necessary. As to the claims for increased disability ratings for the cervical spine and radiculopathy disabilities, the last VA examinations completed in November 2017 are too remote to provide a current disability picture of the severity of the Veteran's condition. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Therefore, the Board finds it necessary to obtain a new VA examination, and accordingly, this matter must be remanded for further development. As to the claim for an initial compensable rating for service-connected headaches, the Board notes that the prior remand ordered the administration of a new VA examination. The record reflects that the Veteran was scheduled for an examination for March 2021 and failed to appear, and further, did not provide good cause or otherwise explain the reason for his absence, nor did he request that the examination be rescheduled. Although the VA has a duty to assist the Veteran in pursing his claims, he has the responsibility of cooperating in the development of all facts pertinent to these claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street). As such, the Board finds that he received proper notice of the scheduled examination and failed to appear without good cause. See 38 C.F.R. § 3.655 (a); see also Woods v. Gober, 14 Vet. App. 214, 220 (2000). Nevertheless, a remand of this matter serves multiple purposes. The Board is cognizant of the challenging nature of the Veteran's multiple service-connected disabilities and is further aware of the severity of his symptoms (see October 2019, Rating Decision (granting a total disability rating based upon individual unemployability)). While a claimant is not entitled to two bites of the apple after failing to uphold his duties to cooperate with the development of his own claim, given the circumstances presented here, the Board finds that the Veteran may be afforded an additional opportunity for an examination of his headache disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records and associate them with the Veteran's claims file. 2. Then, schedule the Veteran for a VA examination (or a telehealth interview, review of the record etc., if an in-person examination is not feasible) by an appropriate clinician to evaluate the severity of his cervical spine, radiculopathy, and headache disabilities. The examiner is requested to review all pertinent records associated with the electronic claims file. All appropriate, studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, the examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities 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. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. (Continued on the next page) Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.