Citation Nr: 1324077 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-04 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a back disorder. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from April to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In July 2012, the Board reopened the Veteran's claim for service connection for a back disorder and remanded the claim for further development. Specifically, the Board ordered the RO to obtain treatment records from VA Medical Centers and to schedule the Veteran for a VA examination to determine the nature and etiology of any back disorder. VA treatment records were obtained and associated with the Virtual VA file. A VA examination was scheduled for August 2012; however, the Veteran failed to report for the examination. When entitlement to a benefit cannot be established without a VA examination and a claimant, without good cause, fails to report for such examination, the claim shall be rated based on the evidence of record when an examination is scheduled in conjunction with an original compensation claim. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655 (2012). In May 2013, the Veteran submitted a statement and supporting evidence indicating that he was incarcerated in August 2012 and unable to attend the scheduled VA examination. As such, the Board finds that the Veteran has provided good cause for failing to appear for his August 2012 VA examination and finds that a remand is necessary to allow for the scheduling of a new VA examination. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 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 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 he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded the appropriate VA examination to determine the presence of any back disorder, to include, but not limited to a spondylolisthesis. If any back disorder is present, the examiner must ascertain each such disorder's etiological relationship to the May 1975 diagnosis of spondylolisthesis, and to the Veteran's active duty service. If any present back disorder is found to have pre-existed the Veteran's military service, the examiner must state upon which evidence of record this determination was made. Additionally, the examiner must also provide an opinion as to whether the pre-existing back disorder underwent a permanent increase in the underlying disorder during service. The examiner must state whether any present back disorder is a congenital or developmental defect, or if it is a hereditary or familial disease. If the examiner determines that any present back disorder is a congenital or developmental defect, the examiner must then opine as to whether the defect was subjected to a superimposed injury or disease in service that resulted in additional disability. If the examiner finds that any present back disorder is a hereditary or familial disease, the examiner must opine as to when the disease was first manifested and diagnosed, and if it was aggravated by the Veteran's military service, to include by the Veteran's inservice report that he fell down steps and hit his back against a wall. The claims file and pertinent 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 must be accomplished. If the examiner cannot render an opinion without resorting to mere speculation, the examiner must thoroughly explain why an opinion would require speculation. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large or 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 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. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned 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 the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report if deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other indicated development, the claim must be re-adjudicated. 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 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) (2012).