Citation Nr: 1220596 Decision Date: 06/13/12 Archive Date: 06/22/12 DOCKET NO. 09-09 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a certificate of eligibility for specially adapted housing or a certificate of eligibility for a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to April 1977, and from April 1979 to January 1989. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The claims file was subsequently transferred to the RO in Louisville, Kentucky. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran seeks entitlement to specially adapted housing. Specifically, the Veteran contends that he has a completely useless left hand and loss of use of both lower extremities. Eligibility for basic entitlement to necessary adaptive equipment exists where a veteran exhibits one of the following as the result of service-connected disorder: (i) loss or permanent loss of use of one or both feet; (ii) loss or permanent loss of use of one or both hands; or (iii) permanent impairment of vision of both eyes with central visual acuity of 20/200 or less in the better eye with corrective glasses or central visual acuity of more than 20/200 if there is a field defect of a certain type. 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808(a), (b). "Loss of use" of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350 (a) (2). Here, the Veteran was afforded a VA peripheral nerves examination in August 2009. The examiner noted that an electromyogram (EMG)/nerve conduction study (NCS) was completed but only performed on the lower extremities. The EMG/NCS showed only a mild neuropathy of the Veteran's bilateral lower extremities, which did not explain the Veteran's reported symptoms and rendered the findings upon examination "out of proportion to what one would expect." The examiner explained that the Veteran's left hand was not studied, and that the Veteran should return for a repeat EMG so that the examiner could submit an opinion as to his left hand disorder. As such, in a December 2009 deferred rating decision, the case was returned for additional neurological testing as indicated in the August 2009 examination report to determine whether the Veteran had loss of use of his left hand. Significantly, prior to this date, the Veteran's address of record was in Lebanon, Indiana. However, correspondence dated in January 2010 informing him of the new examination was sent to an address in Tompkinsville, Kentucky. A record dated on January 29, 2010, indicated that the Veteran's examination was cancelled due to his failure to report; however, a Report of General Information dated in February 2010 indicated that the Veteran cancelled his examination, which was scheduled to take place in Indianapolis, Indiana, and requested that it be rescheduled at a facility closer to where the Veteran now lived in Kentucky. This Report of General Information also listed the Veteran as currently living in Tompkinsville, Kentucky. However, a subsequent record indicates that the Veteran's rescheduled examination was cancelled on July 30, 2010, again due to his failure to report. However, there is no correspondence associated with the claims folder notifying the Veteran of the time and place of this rescheduled examination. Significantly, the report which indicated that he failed to report to the scheduled examination also used his old address in Lebanon, Indiana. This suggests that any correspondence notifying the Veteran of the rescheduled examination was sent to his old address in Lebanon, Indiana, rather than to his current address in Tompkinsville, Kentucky. As such, the Board finds that the Veteran should be afforded another opportunity to appear at a VA peripheral nerves examination to have an EMG/NCS completed with respect to his left hand. Proper correspondence notifying the Veteran of the time, date, and location of the scheduled examination should be sent to his current address of record, and a copy of this correspondence should be associated with the claims file. Accordingly, the case is remanded for the following action: 1. The RO must request that the Veteran identify all VA and non-VA medical providers who have treated him for disorders of the upper and/or lower extremities. The RO must then obtain copies of the related medical records that are not already in the claims file. Regardless of the Veteran's response, the RO must obtain all VA medical records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Vet must be afforded an appropriate VA peripheral nerves examination to determine the current nature and severity of any disorder of the left upper extremity. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an EMG/NCS of the left hand, must be accomplished. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran 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). _________________________________________________ JOY A. MCDONALD 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) (2011).