Citation Nr: 1317570 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-23 354 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, inter alia, denied service connection for a low back disability. In August 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. In his substantive appeal and subsequent July 2009 statement, the Veteran requested a Board video-conference hearing before a Veterans Law Judge. A February 2013 letter informed the Veteran that his hearing was scheduled in April 2013. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing. The Board notes that the issue of entitlement to a compensable rating for status post fracture, little finger, right hand was addressed in the statement of the case. However, in his substantive appeal, the Veteran indicated that he only wished to appeal the matter of service connection for a low back disability. Hence, the only claim for which an appeal has been perfected is that set forth on the title page. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. In this case, service treatment records document the reports of back complaints, and an assessment of mild muscle injury. Although California Department of Corrections records reflect the Veteran's report of a injury to his back in 1976 due to a motor vehicle accident, and a diagnosis of degenerative disc disease of the spine, he has essentially asserted that his back problems began in service. The record does not include medical evidence clarifying the nature of all current back disability(ies), or medical opinion commenting upon the relationship, if any, between current back disability and service. The Board observes that in January 2011, the Veteran indicated that his address was in Huntington Beach, California and all subsequent communication from the RO has been sent to this address. In February 2012, the Veteran failed to report for a VA examination scheduled in connection with the claim on appeal. A subsequent Social Security Administration inquiry dated in July 2012 shows that the Veteran resided in Fountain Valley, California and gave a current phone number. This information suggests that the Veteran may have had a different address at the time the examination was scheduled in 2012. However, as a copy of the notice to the Veteran informing him of the examination is not of record ,it is unclear from the claims file whether the Veteran received proper notice of the VA examination. While the Veteran certainly is responsible for keeping VA informed of his current address, given the facts noted above, and to ensure that the Veteran is afforded due process in connection with this appeal, the Board finds that, on remand, appropriate action should be undertaken to clarify the Veteran's current address, and to again arrange for him to undergo spine examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim (as the original claim will be considered on the basis of the evidence of record). 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The Board observes that the report of a 1975 enlistment examination is of record. However, no active service has been verified after 1971. The RO should contact the National Personnel Records Center to verify whether the Veteran has any further active duty service beginning in 1975. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Undertake appropriate action to Verify the Veteran's current address, to specifically include contacting him at the address provided on the July 2012 SSA inquiry. 2. Contact the NPRC to verify whether the Veteran has a second period of active duty service beginning in approximately in 1975. All responses received should be associated with the claims file. 3. Thereafter, send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination, by an appropriate physician, at a VA medical facility. The Veteran's entire claims file, to include a complete copy of the REMAND, and copies of pertinent documents from the Veteran's Virtual VA file (if the physician does not have access) must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) affecting the lumbar spine,, to include degenerative disc disease. Then, with respect to each diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is at least a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service, to include injury incurred and/or complaints noted therein, In rendering the requested opinion, the physician should specifically consider the in- and post-service treatment records, as well as the Veteran's contentions. The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 9. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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).