Citation Nr: 1331132 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-15 437A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for a right hip disorder. 3. Entitlement to service connection for a left hip disorder. 4. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant (Veteran) represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared before the undersigned Veterans Law Judge in a hearing at the RO in August 2010 to present testimony on the issues on appeal. The Board remanded this matter for additional development in December 2012. The Board has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. No relevant evidence has been included in the claims file since the supplemental statement of the case (SSOC) dated in July 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). On September 13, 2013, the Board received mail that was forwarded from the Appeals Management Center to be added to the claims file. This mail is a supplemental claim for service connection for a right hand cyst and a claim to reopen a previously denied claim of service connection for lower back disability and post-traumatic stress disorder. As these claims have not been developed and adjudicated, the Board does not have jurisdiction of them. They are hereby referred to the St. Petersburg, Florida Regional Office for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In its December 2012 remand, the Board requested additional medical inquiry into the Veteran's claims for service connection. The record indicates that the Veteran was offered a VA compensation examination into his claims, but that he did not appear for his scheduled examination, or contact VA regarding the examination. It is not clear from the record, however, that the Veteran was properly notified of the scheduled examination. There is no letter of record from VA to the Veteran notifying him of the examination time and location. Further, the VAMC documents detailing the nature of the scheduled examination contain an address different from the Veteran's current address, as noted in VACOLS (which the AMC has used in post-remand correspondence to the Veteran that is of record). Based upon this lack of clarity, the Veteran should be given another opportunity to attend a VA compensation examination into his claims. The Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for the appropriate VA exam to answer the following questions. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to provide opinions as to the following: a. whether it is at least as likely as not that a currently diagnosed right foot disorder, bilateral hip disorder, and/or right shoulder disorder is related to any in-service disease, event, or injury. Review of the whole file is requested, but specific attention is invited to the tabbed service treatment records, documenting an in-service trauma to the right foot. Also, the examiner is specifically advised that the Veteran is credible in an assertion of record that he experienced pain in his shoulders from heavy lifting as required as part of his duties as a jet mechanic. b. whether it is at least as likely as not that any current bilateral hip disorder was caused by the right foot disorder, or has been aggravated (increased in severity beyond the natural course of the disability) by the right foot disorder. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is further reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 3. After all the above development has been completed, readjudicate the claims on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran should be provided with a SSOC as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).