Citation Nr: 0813247 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 00-15 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for post-operative joint disease of the left shoulder. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine, post-diskectomy of C3 and C6. REPRESENTATION Appellant represented by: Clarance F. Rhea, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from February 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2004 the appellant testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was previously before the Board in October 2006, when the two issues remaining on appeal were remanded so that medical examination of the veteran could be conducted. Unfortunately additional action is necessary and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In October 2006, the Board remanded the case with instructions to schedule the veteran for the appropriate VA examinations to obtain the evidence necessary to rate the veteran's service-connected cervical spine and left shoulder disabilities. Evidence received from VA Medical Center (VAMC) Birmingham, Alabama indicates that the veteran was scheduled for the ordered examinations in March 2007, but that he failed to report. A letter from the veteran's attorney dated December 2006 indicates that the veteran was willing to report for examination. While this letter is dated prior to the VAMC record, it is in the claims file after the February 2007 record. Moreover, there is no documentation in the claims file as to what notification the veteran did, or did not, receive with respect to the scheduled March 2007 VA examinations. Under the applicable criteria, when entitlement or continued entitlement to a benefit, such as a claim for an increased evaluation, cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such an examination, or re-examination, the claim shall be denied. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655. The United States Court of Appeals for Veterans Claims (Court) has held that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). In the present case, the veteran failed to report to the scheduled March 2007 VA examination. However, it is unclear from the record what notification, if any, the veteran was provided. Accordingly, the veteran will be afforded one more opportunity to report for the required VA examinations. The veteran and his attorney are notified that failure to do so may result in the denial of the claims on appeal. 38 C.F.R. § 3.655. Accordingly, the case is REMANDED for the following action: 1. The veteran should be accorded a VA joints examination. The report of examination should include a detailed account of all manifestations of the left shoulder disorder found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Range of motion testing of the left shoulder joint should be conducted and results reported in degrees. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examining physician should provide complete rationale for all conclusions reached. 2. The veteran should be accorded an examination for spine disabilities. The report of examination should include a detailed account of all manifestations of degenerative disc disease of the cervical spine found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Range of motion testing of the cervical spine must be conducted. The examiner should also indicate if the veteran has ankylosis of the cervical spine or if there are any neurologic manifestations of the service- connected degenerative disc disease. The examiner should also note if the veteran experiences any incapacitating episodes as a resulted of his intervertebral disc syndrome. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examining physician should provide complete rationale for all conclusions reached. 3. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include rating the claims on the evidence of record, or denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. In that regard, it is noted that the Veterans Health Administration has a different zip code listed for the veteran on the C&P Exam Detail report that was printed on January 26, 2007, than the one he has reported to the RO. Notice must be sent to the correct address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Following the above, readjudicate the appellant's claims. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued and the appellant and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).