Citation Nr: 22007002 Decision Date: 02/08/22 Archive Date: 02/08/22 DOCKET NO. 14-37 585 DATE: February 8, 2022 REMANDED Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 20 percent for let lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to August 1980. The Veteran's claims were previously before in May 2018 and were remanded for further development. Specifically, the Agency of Original Jurisdiction (AOJ) was required to schedule the Veteran for a new VA examination to determine the current severity of his disabilities. For reasons discussed below, the required examination was not completed. Accordingly, the Board finds there has not been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aires v. Peake, 22 Vet. App. 97, 105 (2008). A review of the claims file shows that new VA examinations were scheduled, but in July 2019 the Veteran cancelled the examinations stating he would be unavailable to attend. Where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for an examination or reexamination scheduled in connection with an original compensation claim, VA will decide the claim based on the evidence of record. 38 C.F.R. § 3.655(a), (b). An initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655(b). See Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). Examples of good cause for failing to appear include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a); Engelke v. Gober, 10 Vet. App. 396, 399 (1997). The Veteran's claims file does not note the reason that he was unavailable to attend, however, the claims file does contain evidence of severe financial and housing hardships. In a December 2020 Informal Hearing Presentation, the Veteran's representative requested that the Veteran's appeal be remanded for the opportunity to complete the required examination. The representative stated that the Veteran is now ready and willing to attend the required examination. Because the Veteran has requested the opportunity to complete the previously scheduled examination, and resolving all doubt in favor of the Veteran, the Board finds that good cause has been shown for the Veteran's previous failure to appear. The Veteran should be afforded an opportunity to be examined for the reasons previously cited in the Board's order of May 2018. It is the Veteran's responsibility to report for a scheduled examination of which he is notified and to cooperate in the development of the case. Finally, the issue of entitlement to TDIU in inextricably intertwined with the other issues being remanded. As such, a remand of the TDIU claim is required. Accordingly, the matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain all outstanding VA and private medical records that pertain to the Veteran's service connected disabilities. 2. Then, schedule the Veteran for an examination by a neurologist or physiatrist to determine the current severity of the Veteran's service-connected bilateral lower extremity neuropathy. The examiner should fully describe the disabilities and report all signs and symptoms necessary for evaluation under Diagnostic Code 8520 (sciatic nerve impairment) AND Diagnostic Code 8526 (femoral nerve impairment). The examiner must also specifically review and address the Veteran's May 2012 and January 2013 examination reports, March 2013 lower extremity EMG report, VA neurological treatment records showing concern for systemic neurological diseases, and the October 2014 Form 9 reporting loss of control over feet and toes. The examiner MUST address all reported neurological symptoms and state whether they are manifestations of the service-connected neuropathy (and, if so, relate each symptom to sciatic neuropathy or femoral neuropathy) or otherwise to the Veteran's service. The examiner should also elicit the Veteran's complete educational, vocational, and employment history and discuss the impact of the service-connected neuropathy on employment. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). 3. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and assist with any needed development to support this claim. 4. After all completed development, the AOJ should then readjudicate the claim, including the claim for TDIU. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.