Citation Nr: 1315096 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 11-04 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for infection and removal of a cyst from the lower back with residual scar tissue. ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1953 to October 1956. This appeal to the Board of Veterans' Appeals (Board) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013 the Board issued a decision denying two other claims the Veteran also had appealed, for service connection for residuals of cold injury to the feet and for hypertension. However, the Board instead remanded this remaining claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration - including especially to have him undergo a VA compensation examination for a medical nexus opinion concerning whether he has residuals of a cyst that he reportedly had while in service and that reportedly had to be treated with surgery because it became infected. Unfortunately, the AMC's effort to have him examined for this opinion was unsuccessful. But the Board believes that further efforts are required in this regard before deciding this claim on appeal, so the Board is again remanding this claim to the RO via the AMC. Please also note the Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The Board previously remanded this claim on February 6, 2013, with instructions to schedule a VA compensation examination for a medical nexus opinion regarding the etiology of this claimed disorder and its potential relationship with the Veteran's military service. The examination was scheduled for February 27, 2013, so for later that same month. The Veteran called and cancelled the examination, however, reportedly refusing to go the location (a VA Medical Center (VAMC)) where it was to be performed. No further explanation was given, and a later call to him for a more detailed explanation was unsuccessful, apparently since the AMC official that called was unable to get into contact with him. It is unclear, then, whether the Veteran simply outright refused to be examined or, instead, preferred an alternative location for the examination. It also is unclear whether the AMC attempted to reschedule the examination at another location. Ordinarily, when a Veteran fails without showing good cause to report for a VA examination scheduled in response to a claim for service connection, the claim is decided based on the existing evidence of record. See 38 C.F.R. § 3.655 (2012). And this is the reason the AMC rather summarily continued to deny this claim in the March 2013 Supplemental Statement of the Case (SSOC). The Board, however, believes the AMC should again try and contact the Veteran to determine whether he is still willing to be examined concerning this claim and, if so, to also determine whether there is legitimate reason for not wanting to be examined at the VAMC where his prior examination was scheduled to take place. But he is reminded that the duty to assist him with his claim is not a one-way street. If he wants help in further developing this claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, this claim is again REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Again try and contact the Veteran to determine the reasons for him refusing to report for his previously scheduled VA compensation examination concerning this claim. If there is good cause (i.e., justifiable or legitimate reason such as the amount of time he would have to travel, his failing health, etc.) for not wanting to come to the VAMC where this examination previously was intended to take place, then try and accommodate him as best possible by scheduling this examination elsewhere, assuming this can be done. A VA compensation examination of his low back, including the site where he allegedly had surgery during his military service for removal of an infected cyst, is still needed to assist in deciding this claim. So if the examination is rescheduled, forward the claims file to the designated examiner for review of all pertinent documents and history of this claimed disability. Inform the examiner that certain symptoms, including pain, are capable of lay observation and that any opinion provided on etiology should contemplate such symptoms. After evaluating this area of the Veteran's body, and performing all necessary diagnostic testing, the examiner is then asked to proceed as follows: a) record the Veteran's medical history, including the nature and location of the cyst, the treatment rendered for it, and the symptoms he has experienced during the many years since (even if recounted by him, personally, given the absence of any documentary evidence like treatment records from during his service and even during the several ensuing years after his discharge); b) offer an opinion as to whether the Veteran currently has residuals of the reported cyst in service, including specifying what these residuals are; c) discuss the underlying medical rationale for the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions; and d) if an opinion cannot be expressed without resorting to mere speculation, discuss why such is the case and whether there is additional evidence or other procurable data that would allow for providing such opinion or whether there are multiple possible etiologies, with none more prevalent than another and the limits of medical knowledge have been exhausted, or whatever may be the reason for being unable to comment. So merely saying he/she cannot comment will not suffice. This opinion on causation should be expressed in terms of the likelihood (very likely, as likely as not, or unlikely) there is the posited cause-and-effect correlation between any current disability shown to exist and that claimed to have been experienced during service. The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term "very likely" also obviously supports the claim, whereas "unlikely" does not. 2. Ensure the opinion is responsive to this determinative issue of causation or provides sufficient explanation as to why it cannot be. If it is not, take any needed corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him another SSOC and give him an opportunity to respond to it by submitting additional evidence and/or argument before returning the file to the Board for further appellate consideration of this remaining claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2012). _________________________________________________ KEITH W. ALLEN 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) (2012).