Citation Nr: 21039690 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-02 859 DATE: July 1, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for lumbosacral degenerative disc disease, herniated at L4-5, and invertebral disc syndrome (hereinafter "lumbar spine disability") is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1996 to August 2004. This matter comes to the Board of Veterans' Appeals (Board) from an April 2016 rating decision which, in pertinent part, continued a 20 percent evaluation for lumbar spine disability. In December 2018, the Board remanded the matter for further development, to include obtaining outstanding private treatment records and a new VA examination to assess the severity of the Veteran's lumbar spine disability. Entitlement to a disability rating in excess of 20 percent for lumbosacral degenerative disc disease, herniated at L4-5, and invertebral disc syndrome is remanded. In December 2018, the Board found that the VA examination of record did not comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) and remanded the claim for a new VA examination. In a September 2019 letter, VA informed the Veteran that a VA facility would reach out to him to schedule a VA examination. In a November 2019 letter, VA informed the Veteran that an examination had been scheduled and that he would be notified of the time, place, and location of the appointment. January 2020 correspondence notes the Veteran's examination was cancelled in December 2019 as VA was unable to contact the Veteran. A January 2020 VA Form 27-0820 (Report of General Information) reflects that VA attempted to call the Veteran regarding his cancelled VA examination at both his work and home number but was unable to leave a message. It is not clear how or when the VA facility attempted to reach the Veteran to inform him of the date, time, and place of his scheduled examination between the November 2019 letter and cancellation of his examination in December 2019. It also does not appear that VA attempted to reach the Veteran a second time in January 2020 regarding his cancelled examination. As the prior examination was inadequate to assess the severity of the Veteran's lumbar spine disability, the Board finds that a remand is warranted for a second attempt to schedule the Veteran for a VA examination. In December 2018, the Board also noted that the Veteran's lumbar spine disability was treated by a non-VA provider and directed VA to undertake development to obtain private treatment records dated since April 2016. In September 2019 and October 2019, VA requested the Veteran complete and return VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs (VA)) and VA Form 21-4142a (General Release for Medical Provider Information to the Department of Veterans Affairs (VA)). To date, no response has been received. As the Board is remanding the claim for an additional attempt to schedule the Veteran for a VA examination, the Veteran should be afforded an additional opportunity to provide these forms. However, the Board emphasizes that VA's duty to assist is a two-way street and if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence to support his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for the San Diego Medical Center from April 2016 to the present. Make two requests for the authorized records from the identified provider unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.