Citation Nr: 1322893 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-18 779A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of a stroke, to include as secondary to service-connected schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In his June 2009 VA Form 9, the Veteran had requested a videoconference hearing before the Board. However, he subsequently withdrew that request in October 2009. As such, the Board finds that there is no outstanding hearing request. See 38 C.F.R. § 20.704(e) (2012). The Virtual VA eFolder has been reviewed and contains relevant documents, to include the June 2013 informal hearing presentation. 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 A review of the claims folder shows that the Veteran suffered a stroke in May 2008. In July 2008, he submitted a claim for service connection for residuals of a stroke, to include as secondary to his service-connected schizophrenia. The Veteran was scheduled for VA examinations in February 2009 and March 2009, but he failed to report for those appointments. While the examination requests appear to include the Veteran's correct mailing address, the actual letters notifying him of the date and time of the scheduled examinations are not of record. In Kyhn v. Shinseki, 24 Vet. App 228 (2011), the United States Court of Appeals for Veterans Claims (Court) determined that there was no requirement that such notice letters be contained in the record for the presumption of regularity to apply. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently vacated and remanded that decision. See --- F.3d ----, 2013 WL 1846562 (C.A.Fed.). In this case, there is no documentation showing that the Veteran was properly notified of the scheduled examinations. Nor is there any published guidance establishing the presumption of regularity in such a situation. Therefore, in an effort to ensure due process, the Board finds that a remand is necessary for a VA examination. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should schedule the Veteran for a VA examination to determine the nature and etiology of his stroke. The Veteran should be notified of the scheduled examination at his correct mailing address. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should identify all current residuals of the Veteran's stroke. The examiner should state whether it is at least as likely as not the Veteran's stroke or residuals thereof were related to his military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran's stroke or residuals thereof were proximately due to or aggravated (permanently worsened) by his service-connected schizophrenia. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A complete rationale for any opinions expressed must be provided. 2. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 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 denial of the claim. 38 C.F.R. § 3.655 (2012). 4. If the Veteran fails to report for the scheduled VA examination, the AMC/RO is requested to obtain a copy of the examination notification letter and associate it with the claims folder or Virtual VA eFolder. If the AMC/RO is unable to obtain a copy of the letter, it should request a statement from the VA Medical Center (VAMC) explaining any established or regular procedures regarding the mailing of examination notification letters. 5. Upon completion of the above development, and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to service connection for residuals of a stroke, to include as secondary to the Veteran's service-connected schizophrenia. All applicable laws, regulations, and theories of entitlement should be considered. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ JESSICA J. WILLS 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).