Citation Nr: 1328253 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-11 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for spondylolisthesis, L5, with degenerative changes, currently 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to April 2005. This matter initially came before the Board of Veterans' Appeal (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2012, the Veteran failed to show without good cause for a Travel Board hearing. Therefore, no further development as to a hearing is necessary. See 38 C.F.R. § 20.704(d) (2012). The Board remanded the matter on appeal in April 2013 to the RO (via the Appeals Management Center (AMC)) 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 While the Board regrets the further delay that remand of this case will cause, it recognizes that due process considerations require such action. The Board previously remanded the case in April 2013 for the purpose of affording the Veteran a new VA spine examination, because the Board had determined that the findings contained in a September 2008 VA spine examination report were in adequate. Such examination was scheduled to take place in May 2013; however, a May 2013 report of contact shows that the Veteran reported by phone that he was out of the country and he would not be available for an examination until December 2013. In response, the Veteran's scheduled examination was cancelled and his claim was readjudicated on the available evidence in June 2013 supplemental statement of the case (SSOC). In light of the Veteran's reports that he could not attend his VA examination because he was out of the country and his notification of when he would be available to attend a scheduled VA examination, the Board finds that he has provided good cause under 38 C.F.R. § 3.655(a). Moreover, as previously noted, the September 2008 VA examination was inadequate, and there is no contemporary medical evidence of record upon which to evaluate the severity of the Veteran's disability. In light of the foregoing, the Board believes that another examination request is warranted and should be scheduled upon the Veteran's return from overseas in December 2013. In this regards, the Board stresses that the Veteran should notify VA when he returns from overseas so that he can be promptly scheduled for an appropriate examination. The Board also emphasizes that a new examination is needed to ensure adequate clinical findings, and the Veteran is hereby advised that serious consequences as to the outcome of his claim can result from his failure to appear for a scheduled examination. When entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without showing good cause, fails to report for such examination, and the examination was scheduled in conjunction with an original compensation claim, the claim shall be adjudicated based on the evidence of record. When the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655. The United States Court of Appeals for Veterans Claims has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). In addition, the Veteran's representative in a March 2010 statement of representative in appeals case requested that the Veteran's claim file be returned to them for a more comprehensive VA Form 646, if the claimant did not report for his Travel Board hearing. It is unclear whether the Veteran's representative has had a chance to review the claims folder since that time as directed by the Board's April 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, the AMC should take appropriate steps to ensure that the Veteran's representative is provided the opportunity to prepare written argument after all development is completed and if the benefit is not granted. Accordingly, the case is REMANDED for the following action: 1. The AMC should ask the Veteran to identify all treatment for his lumbar spine disability. The AMC should obtain all identified records, and the appellant's assistance should be requested as needed. Regardless of the claimant's response, the AMC should obtain all outstanding VA treatment records from June 2009 to present. Any obtained records should be associated with the appellant's claims file. 2. After the Veteran returns to the country in December 2013, he should be afforded a VA examination to determine the nature and extent of his lumbar spine disability. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to spondylolisthesis, L5, with degenerative changes. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups). If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. If the examiner is unable to provide an opinion with respect to any of these matters, then he or she must state so and provide reasons why an opinion cannot be provided. A complete rationale for any opinion offered must be provided. 3. After the development requested, the AMC 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 AMC must implement corrective procedures at once. 4. Thereafter, the issue on appeal should be readjudicated in light of the additional evidence of records. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to to prepare written argument or other respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ MICHAEL LANE 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).