Citation Nr: 1341680 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 09-15 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral plantar peripheral neuropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1965 to April 1968 and from October 1984 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2012, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). In June 2013, the Board remanded the case for additional development. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of the electronic record. The Veteran's September 2013 correspondence may be construed as a request to reopen his service connection claim for diabetes mellitus. As this request has not been addressed by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. Therefore, it is referred to the AOJ for appropriate action. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Although this issue has been previously remanded, the Board finds it must again be remanded for an adequate decision. In a June 2013 remand the Board requested that the Veteran be examined by a VA neurologist to ascertain the nature and etiology of his bilateral plantar peripheral neuropathy. The examiner was requested to review the claims file and to render an opinion regarding, in light of the lay statements contained in the claims folder, whether it was at least as likely as not (probability of 50 percent or more) that he has peripheral neuropathy as a result of service or that was caused or aggravated (permanently increased in severity by) his service-connected lumbar spine disability. Although an opinion was obtained in August 2013, the examiner was not provided access to the Veteran's claims file or VA record and did not address claims that the Veteran had foot problems during active service. It was also noted that the Veteran had failed to report for VA electromyography (EMG) testing. In a September 2013 statement the Veteran reported that he had not been notified of the scheduled EMG testing appointment and, in essence, indicated his willingness to report for testing. He also indicated that he had diabetes mellitus and that his VA treatment records would demonstrate that he was receiving test strips and diabetic shoes. The available electronic record further shows that efforts to add VA treatment (Capri) records dated from August 2000 to November 2011 from the Shreveport, Louisiana, VA Medical Center were unsuccessful. Additional efforts are required to include any additional pertinent VA treatment records with the appellate record. The Board finds that the Veteran should be provided another opportunity to report for EMG testing and, thereafter, the August 2013 or, if unavailable, another VA neurologist should be given an opportunity to review the record for the requested etiology opinions. The United States Court of Appeals for Veterans Claims has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). The burden is upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for his claimant's failure to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). The Court has also held that VA's "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. VA regulations provide that when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination an original compensation claim shall be rated based upon the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and the death of an immediate family member. See 38 C.F.R. § 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issue on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, to include all pertinent VA treatment records dated from August 2000 to November 2011, unless further efforts would be futile. All efforts to procure records should be documented in the file. If any records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. 2. Following completion of the above, schedule the Veteran for EMG studies and, if not established by VA treatment records obtained, diabetes mellitus testing. 3. Following completion of directive #2, the Veteran's claims file or VA electronic record should be reviewed by the August 2013 VA examiner, or, if unavailable, another VA neurologist, for opinions as to whether it is at least as likely as not (probability of 50 percent or more) that he has peripheral neuropathy that is related to service, including consideration of credible lay statements as to foot problems during service, or that was caused or aggravated (increased in severity by) his service-connected lumbar spine disability. Opinions should be provided based on the results of EMG testing, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be readjudicated with consideration of all evidence of record. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, afforded the opportunity to respond, and the case should thereafter be returned to the Board for further 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). _________________________________________________ Michael J. Skaltsounis Acting 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).