Citation Nr: 1328867	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  12-18 006	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for kidney dysfunction associated with schistosomiasis.

3.  Entitlement to service connection for chronic anemia associated with schistosomiasis.

4.  Entitlement to an increased evaluation for service-connected bilateral hearing loss.

5.  Entitlement to an increased evaluation for service-connected posttraumatic stress disorder (PTSD) (formerly diagnosed as chronic anxiety reaction).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

R. Dodd, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1943 to February 1946. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2010 and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The Veteran filed notices of disagreement (NOD) in April 2010 and July 2011.  A statement of the case (SOC) was sent to the Veteran on May 2012.  The Veteran perfected his appeal with the timely submission of a VA form 9 in June 2012.  

The Veteran and a witness testified before the undersigned Veterans Law Judge at a March 2013 hearing that was held via live video conference at the RO.  At the hearing, on the record, the Veteran withdrew his appeal of the issue concerning entitlement to an increased (compensable) rating for schistosomiasis.  A copy of the transcript has been associated with the claims file.

A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated December 2009 to March 2012.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for kidney dysfunction and chronic anemia associated with schistosomiasis, an increased evaluation for bilateral hearing loss, and an increase evaluation for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Tinnitus was not manifest in service and is not otherwise attributable to service.


CONCLUSION OF LAW

Tinnitus was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119   (2004).  VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.   Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

The Veteran received complete VCAA-compliant notice, to include the disability-rating and effective-date elements of a service connection claim, prior to the April 2010 rating decision on appeal.  Furthermore, he has not shown any prejudice in regard to the timing or content of the notice provided.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records (STRs) private treatment records, and VA treatment records have been obtained and associated with the claims file.   The Veteran was provided with a VA audiological examination in December 2009.  The examination was adequate because it contained a history obtained from the Veteran and thorough audiological examination relevant to the applicable rating criteria.  There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  

The Veteran has also been afforded a hearing before the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the presiding Veterans Law Judge identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection for tinnitus, and the Veteran and his witness volunteered his subjective symptoms and employment history during the period under consideration.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. 

Neither the Veteran nor his representative has made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of his appeal.  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal.

Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506   (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008).   

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).   

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519   (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

The Veteran contends that his currently diagnosed tinnitus is related to noise exposure sustained in military service.  In his June 2012 VA Form 9, the Veteran further contended that just because he worked at a machine shop post-service until he was 78 years old does not mean that the acoustic trauma from military service did not cause his tinnitus.  At his July 2011 decision review officer (DRO) hearing, the Veteran stated that he was positioned near very large guns and artillery that fired 24 hours per day for seven days straight during military service.  The Veteran denied the use of hearing protection during his service.  He stated that he was not sure of the onset, as he was sick in a hospital at the end of his service and he does not know if the tinnitus had started then or not.  At his March 2013 Board hearing, it was stated that he was exposed to extremely loud noise in a direct combat environment, as confirmed by his receipt of the Combat Infantryman's Badge.  In particular, he stated that he was exposed to loud gunfire and artillery.  The Veteran stated that his tinnitus is manifested by a ringing and it's getting pretty bad.  The Veteran further claimed that the onset was a long time ago, but he does not remember exactly when it started.  

A review of the Veteran's STRs was silent for complaints, treatment, or diagnosis of tinnitus.  The Veteran's private treatment records were also absent for a discussion of tinnitus.

The Veteran's VA outpatient treatment records revealed that the Veteran had received treatment for tinnitus in conjunction with his bilateral hearing loss.  There was no discussion of etiology or onset relating to the Veteran's complaints of tinnitus.

The Veteran was administered a VA audiological examination in December 2009.  At this examination, the examiner noted the Veteran's history of military noise exposure, to include noise from artillery and anti-tank guns.  The examiner found that the Veteran had bilateral tinnitus, which was intermittent, occurring 2 to 3 times per year and lasting for 2 to 3 days.  It was noted that the condition had been present since the 1950s.  The examiner further found that onset was not related to a specific event.  Upon review of the Veteran's medical records, the examiner opined that the Veteran's tinnitus was less likely than not related to his military service, as he did not report onset until several years after service.

Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for tinnitus, so the appeal must be denied.

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert, 1 Vet. App. at 57.  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment.  Caluza, 7 Vet. App. at 498.

A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).  The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan, 451 F.3d at 1337 (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). 

Here, we find that the Veteran is competent to report ringing in his ears and the circumstances surrounding such.  However, as explained below, we find that the more probative evidence is against the finding that he has tinnitus that is related to service.

To the extent that the Veteran asserts that he has tinnitus that is related to service, the Board finds that his assertions are not credible.  In this regard, we find that such are inconsistent with the other (lay and medical) evidence of record.  Tinnitus is not shown in the record until his August 2009 claim for compensation.  The Board emphasizes the multi-year gap between discharge from active duty service (1946) and the initial reported symptoms in approximately 2009 (a 63-year gap).  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).  Furthermore, the Veteran has stated that he worked as a machinist until he was 78 years old and he told the examiner at his December 2009 VA examination that his symptoms did not begin until the 1950s, years after service.  

To the extent that the Veteran argues that his tinnitus started in service and continued, we find against this assertion.  In this regard, we note that in the Veteran's statements claiming such onset, he has also stated that he is not certain, particularly because of his illness and hospitalization towards the end of his service.   Also, the Veteran filed claims for and was service-connected for the conditions of schistosomiasis and chronic anxiety reaction immediately following service in 1946 and 1964 respectively.  The Veteran has indicated that his tinnitus dates back to service, but it seems unlikely that he would file a claim for other disabilities and not mention a continuing problem with tinnitus or related symptomatology at that time. We find it not credible that he would file a claim for other disabilities and not for ongoing tinnitus if he were experiencing continuity.  Furthermore, the Veteran's credibility is called into question after having told the 2009 VA examiner that his condition began in the 1950s and then, only after learning of the basis for the denial of his claim in the April 2010 rating decision, the Veteran began to assert that his condition could have possibly begun during service.

The Board has weighed the Veteran's statements and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the absence of related symptoms at separation, his failure to include his claim in his original claim and subsequent claims, the original statement of onset beginning in the 1950s, and the nearly six decade gap between when he claims he began noticing the symptoms and when he actually reported them.

In summary, the preponderance of the evidence is against the grant of service connection for tinnitus.  Accordingly, the claim is denied. 


ORDER

Entitlement to service connection for tinnitus is denied.


REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim.  In particular, 1) the AMC should attempt to obtain private treatment records identified by the Veteran relating to his kidney and anemia conditions and 2) the Veteran should be provided with new VA examinations for his service-connected bilateral hearing loss and PTSD.

Kidney Dysfunction and Chronic Anemia

At the March 2013 Board hearing, the Veteran testified that he would be receiving a private examination for his kidney dysfunction and chronic anemia on March 29, 2013 as well as other records from that provider.  The Veteran requested to hold the record open for 60 days from the hearing in order to obtain those records and submit them for consideration.  Although the record was held open for 60 days, there is no indication that the Veteran attempted to submit the aforementioned records.

VA's duty to assist includes making reasonable efforts to obtain relevant private medical records.  38 C.F.R. § 3.159(c)(1).  Such reasonable efforts generally include an initial request and, if a response is not received, at least one follow-up request, unless a response indicates that the records sought do not exist or that a follow-up request for the records would be futile.  Id.  If, however, VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.  Id.  Here, the Veteran has identified records that may be necessary to render a decision on his claim.  He has been afforded time to submit these records, but no additional requests or attempts to obtain them have been made.  Although the "duty to assist is not a one-way street," the Board finds that additional attempts should be made to obtain the Veteran's private treatment records.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, attempts must be made to obtain these records.

Bilateral Hearing Loss

The Veteran has alleged that his hearing loss is worse than contemplated in his initial non-compensable evaluation, based upon his December 2009 VA audiological examination.  At the Veteran's July 2011 DRO hearing, he testified that his wife was constantly asking him to go get hearing aids because she has noticed his inability to hear in most situations.  The Veteran stated that he knows he talks too loud to others and that he has been told by doctors that he needs hearing aids, but he cannot afford them.   Furthermore, at his March 2013 Board hearing, the Veteran indicated that his bilateral hearing loss had continued to worsen.

On VA audiology examination in May 2010 the Veteran's claim file was reviewed. 
Pure tone thresholds, in decibels, were as follows:

 
 
 
 
HERTZ
 
 
 
500
1000
2000
3000
4000
RIGHT
        5
        5
        25
        75
        70
LEFT
        5
        10
        35
        90
        95
 
Average decibel loss for the right ear rounded to 43.75 and average decibel loss for the left ear rounded to 57.5.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear.  The examiner did not discuss the social or occupational impairment resulting from the Veteran's hearing loss or its effects on his daily activities.

A preliminary review of the December 2009  audio examination reveals that it is insufficient for rating purposes.  While an objective audiogram and Maryland CNC speech recognition tests were employed by a licensed audiologist, the examiner failed to discuss the functional effects of the Veteran's condition.  This is particularly significant in this particular appeal, as the Veteran described more severe functional loss during his July 2011 DRO hearing and March 2013 Board hearing.  At the Board hearing, the Veteran testified that his hearing acuity had deteriorated to the point where a reevaluation was necessary and at the DRO hearing he testified that his wife believed he should get hearing aids, as he was having hearing trouble in everyday settings.

Because the prior VA examiner did not comment sufficiently on the specific functional effects of the Veteran's hearing loss disability, the Board must remand this claim to provide the Veteran another VA audiological examination for compensation purposes addressing the impact of his hearing loss on his daily functioning.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

Additionally, because the Veteran has claimed that his bilateral hearing loss has worsened since his last examination, the Board finds that the Veteran must be provided with a contemporaneous examination.  The contrast with the contention that the Veteran's condition has deteriorated must be reconciled.  See 38 C.F.R. § 4.85.  VA has a duty to assist veterans to obtain evidence needed to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2012).  This duty to assist includes providing a thorough and contemporaneous medical examination.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current state of the condition.  See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)).  As such, it is necessary to obtain a new examination in order to assess the current severity of the Veteran's bilateral hearing loss.

PTSD

The Veteran has alleged that his PTSD is worse than contemplated in his current 30 percent evaluation, based upon his December 2010 VA PTSD examination.  The Veteran's wife submitted a lay statement indicating that, at some time in 2010, the Veteran read an article about World War II that cause negative feelings to come back, leading to nightmares, screaming, fighting, and sleepless nights.  She further stated that these increased symptoms have continued since that time to present.  At his July 2011 DRO hearing, the Veteran testified that he was still suffering from depression, anxiety, panic, and sleeplessness.  He also stated that he was becoming more afraid to go to sleep at night for fear of death.  Furthermore, at his March 2013 Board hearing, the Veteran indicated that his PTSD had gotten worse, as he was having increased symptoms of sleep disturbance, flashbacks, and nightmares ever since he read the World War II article.  He also indicated that he "went crazy" in the hospital and that his wife had to be called in.  Additionally, the Veteran's wife testified that the Veteran has become more violent in his sleep over the years and that it had last occurred about 3 to 4 weeks prior to the hearing.

The Board finds that the Veteran has reported worsening symptoms of his PTSD since his last VA examination in December 2010 and, therefore, a new examination is warranted.  VA has a duty to assist veterans to obtain evidence needed to substantiate a claim.  38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159.  This duty to assist includes providing a thorough and contemporaneous medical examination.  See Green, 1 Vet. App. at 124.  In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current state of the condition.  See Olson, 3 Vet. App. at 482 (citing Proscelle, 2 Vet. App. at 632).  As such, it is necessary to obtain a new examination in order to assess the current severity of the Veteran's PTSD.

Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, the case is REMANDED for the following action:

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal.  In particular the records identified by the Veteran at his March 2013 Board hearing, to include a March 29, 2013 private examination, should be requested.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the Veteran's PTSD. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.

In particular, the examiner is to discuss the effects of the Veteran's PTSD, in and of itself, on his employability, activities of daily living, social life, and family life.  Any allocation of symptoms or findings of the Veteran's current condition must be sufficiently explained. 

3. Additionally, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the Veteran's bilateral hearing loss. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.

In particular, the examiner must assess the current nature, extent, and severity of this hearing loss disability, and, in so doing, must fully describe the consequent effects on the Veteran's daily functioning. See Martinak, 21 Vet. App. at 455.

4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 any scheduled 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.

5. 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 must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  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.

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).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs