Citation Nr: 1318471 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-18 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral flat feet. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active service from July 2, 1997 to July 21, 1997. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in San Diego, California and Reno, Nevada. A Board hearing via videoconference in front of the undersigned Veterans Law Judge was held in September 2008. A transcript of the hearing has been associated with the claim file. This matter was previously before the Board in October 2008 and September 2011 and was remanded for additional development. 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 Pursuant to the October 2008 and September 2011 remand directives, the RO was instructed to afford the Veteran a VA examination for her bilateral pes planus, including to distinguish the pes planus from any non-service connected foot disabilities. The claim was remanded in September 2011 because the RO failed to properly notify the Veteran of the scheduled VA examination. The Veteran has still yet to be properly notified of a VA examination, therefore another remand is necessary. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The record shows that on September 12, 2011, the RO sent a letter to the Veteran addressed to an address in Katy, Texas, instructing the Veteran to report for an examination to a VA Medical Center in Chicago, Illinois on November 30, 2009. The Board notes that a letter in January 2010 and a copy of the September 2011 Board remand were sent to the Veteran at a Las Vegas, Nevada address. The United States Court of Appeals for Veterans Claims (Court) has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). In this case, it appears that the notice of a VA examination had been sent to the wrong address, for a date in the past, at a VAMC in a state in which the Veteran does not reside. Therefore, it is necessary to remand this claim to ensure that the Veteran receives proper notice of a VA examination. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination. The examiner should distinguish the pes planus from any other non-service connected foot disabilities. All manifestations of pes planus should be noted. 2. The Veteran must be given adequate notice of the date, time, and location of any scheduled examination at the current Las Vegas, Nevada address. A copy of all notification letters sent to the Veteran must be included in the claims file. 3. After completing the above actions and any other notification or development deemed necessary, the Veteran's claim of entitlement to an increased rating for bilateral pes planus should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further 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. 2012). _________________________________________________ H.N. SCHWARTZ 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).