Citation Nr: 1326153 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-41 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for numbness of the right lower extremity. 2. Entitlement to service connection for numbness of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from February 1998 to May 2003 and from June 2006 to October 2007, with service in Iraq from October 2006 to September 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This case was most recently before the Board in May 2012, when claims for increased disability ratings for residuals of a cervical strain and for residuals of a back injury were granted. The Veteran's claims for service connection for numbness of the right and left lower extremities were remanded for a VA examination. The RO issued a supplemental statement of the case in December 2012 and the appeal is once again before the Board. 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 In May 2012, the Board remanded the appeal to afford the Veteran a VA examination for his claimed disabilities. On June 11, 2012, the AMC mailed the Veteran a letter informing him that the nearest VA medical facility would contact him and inform him about the date, time, and place of the scheduled examinations. They instructed him to contact the medical facility as soon as possible if he could not appear. He was also notified if he failed to report for an examination without good cause, then the claims would be evaluated on the current record. On July 5, 2012 the VA sent a letter to the Veteran notifying him that he was scheduled for a VA examination that day at 10 am. The Veteran did not appear for the aforementioned examination. The Veteran was sent another letter on August 3, 2012 indicating that he would be afforded another opportunity to appear for a VA examination. It is unclear whether or not another VA examination was scheduled. Typically, when a claimant fails to report for a VA examination in a service connection claim, the claim is adjudicated based upon the evidence of record. 38 C.F.R. § 3.655(a),(b). Nonetheless, the general notification mailed on July 5, 2012, was issued on the same date as the scheduled VA examination. The Board finds that the notification for the scheduled VA examination was not timely. Since the notice letter was dated the day of the examination, it is unlikely that the Veteran received the letter prior to his scheduled examination. The Veteran's service representative, in a July 2013 Informal Hearing Presentation, asserts that the Veteran was not timely notified of the scheduled VA examination, and as a result failed to appear. The RO/AMC must reschedule the VA examination and ensure that the Veteran has a reasonable amount of time to respond to the examination notice. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be scheduled for neurologic and vascular examinations of his feet. The claims folder should be made available to each examiner in conjunction with the examination. Ensure that the Veteran has a reasonable amount of time to respond to the scheduling notification of the VA examination. Inform the Veteran that his failure to appear for the examination, without good cause timely shown, will result in his claim being adjudicated based on the evidence of record, pursuant to 38 C.F.R. § 3.655(a),(b). Any tests or studies deemed necessary to respond to the following questions should be done. The examiners should respond to the following: a. What is the correct diagnosis for the claimed numbness of the Veteran's feet? b. Is it at least as likely as not (a 50 percent probability or greater) that the claimed numbness had its onset or increased in severity during the Veteran's active service? c. Is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed numbness of the feet is caused by, or aggravated by, his service-connected cervical strain? Is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed numbness of the feet is caused by, or aggravated by, his service-connected spondylosis and compression of the T8-T9 vertebrae, claimed as a back injury? The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder (i.e., a baseline) before the onset of the aggravation. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and provide supporting rationale. 2. Thereafter, the AOJ should readjudicate these claims in light of any evidence added to the record. If any benefit sought on appeal remains denied, the Appellant and his representative should be provided a supplemental statement of the case (SSOC). 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). These claims 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). _________________________________________________ F. JUDGE FLOWERS 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).