Citation Nr: A25035301 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240404-430473 DATE: April 16, 2025 REMANDED The appeal as to the claim of entitlement to an evaluation in excess of 20 percent for service-connected cervical spine disorder, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 40 percent for service-connected lumbar spine disorder, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 20 percent for service-connected right lower extremity sciatic nerve radiculopathy, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 20 percent for service-connected left lower extremity sciatic nerve radiculopathy, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 1991 to January 1994. His service was under honorable conditions. The matter is on appeal from a February 2024 rating decision issued by a VA Regional Office (RO). The Veteran chose to participate in VA's test program "RAMP", the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Veteran opted into RAMP on April 4, 2024, and selected the Direct Review Lane. Therefore, the Board may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to an evaluation in excess of 20 percent for service-connected cervical spine disorder. See argument Below at 4 2. Entitlement to an evaluation in excess of 40 percent for service-connected lumbar spine disorder. See argument Below at 4 3. Entitlement to an evaluation in excess of 20 percent for service-connected right lower extremity sciatic nerve radiculopathy. See argument Below at 4 4. Entitlement to an evaluation in excess of 20 percent for service-connected left lower extremity sciatic nerve radiculopathy. The Board finds that a remand is required to correct a duty to assist error that occurred prior to the Veteran's election to enter the RAMP program. Following a review of the evidence associated with the claims file prior to the Veteran electing to participate in the RAMP program, the Board finds that VA examinations are warranted. The Veteran was scheduled for VA examinations to determine the current severity of his service-connected cervical spine, lumbar spine, right lower extremity radiculopathy, and left lower extremity radiculopathy disabilities, on November 9, 2023, which he did not attend. In January 2024, he contacted the RO inquiring about why "the system" marked him as a "no show" for the musculoskeletal examinations. The Veteran indicated that he attended the October 2023 VA psychiatric examination, and noted the October 20, 2023, notification of such examination, which is of record. He explained that he was not notified of the aforementioned musculoskeletal examinations. Prior to submitting his notice of disagreement in early April 2024, the Veteran again inquired about the missed musculoskeletal examinations. In an August 2024 brief, the Veteran's representative asserted that the Veteran had demonstrated good cause for not reporting for his scheduled musculoskeletal examinations. In this regard, the Veteran's representative indicated that the Veteran received a letter notifying him of his October 2023 VA psychiatric examination, which he attended, but he did not receive a letter or notification concerning the musculoskeletal exams. In this regard, the Board notes that the record contains the musculoskeletal examination requests followed by notifications of no shows in November 2023. The record does not include documentation of attempts to notify the Veteran of the November 2023 musculoskeletal examination; it only shows notification for an October 2023 VA psychiatric examination. The Board finds that the Veteran was not notified of his November 2023 musculoskeletal examinations. Therefore, the Board finds that good cause has been shown to reschedule the examinations, and the Veteran has shown willingness to report to rescheduled examinations. See 38 C.F.R. § 3.655. Accordingly, a remand is necessary to provide the Veteran another opportunity to attend a VA examination to determine the current severity of his service-connected cervical spine, lumbar spine, right lower extremity radiculopathy, and left lower extremity radiculopathy disabilities. The matters are REMANDED for the following actions: 1. CERVICAL SPINE - Schedule the Veteran for a cervical spine examination by an appropriate physician to assess the present nature and severity of his service-connected cervical spine disability. The examiner must review the record, to include service treatment records, VA treatment records, VA examination reports, and the Veteran's assertions. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Conduct range of motion testing of the Veteran's cervical spine disability, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts that he is unable to perform range of motion testing due to pain. (b.) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination. If pain on motion is observed, the VA examiner should indicate the point at which pain begins, where possible. (c.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his cervical spine due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. LUMBAR SPINE - Schedule the Veteran for a lumbar spine examination by an appropriate physician to assess the present nature and severity of his service-connected lumbar spine disability. The examiner must review the record, to include service treatment records, VA treatment records, VA examination reports, and the Veteran's assertions. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Conduct range of motion testing of the Veteran's lumbar spine disability, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts that he is unable to perform range of motion testing due to pain. (b.) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination. If pain on motion is observed, the VA examiner should indicate the point at which pain begins, where possible. (c.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his lumbar spine due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 3. RIGHT AND LEFT LOWER EXTREMITY RADICULOPATHY - Schedule the Veteran for an examination by an appropriate physician to assess the present nature and severity of his service-connected right and left lower extremity radiculopathy disabilities. The examiner must review the record, to include service treatment records, VA treatment records, VA examination reports, and the Veteran's assertions. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (Continued on the next page) ? The examiner is requested to comment on the severity of the Veteran's service-connected right lower extremity and left lower extremity radiculopathy disorders throughout the rating period. The examiner should discuss the effect of the disabilities on his occupational functioning and daily activities. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.