Citation Nr: 1414066 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 08-20 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a separate evaluation for lower extremity neurologic abnormalities associated with lumbosacral strain with degenerative disc disease (DDD) for the period on appeal beginning October 28, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary-Caitlin Ray, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 until June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Subsequently, jurisdiction was transferred to the Veteran's home RO in Montgomery, Alabama. He initiated an appeal as to the aforementioned determination. The Veteran appeared before the undersigned Veterans Law Judge in December 2011 at a Travel Board hearing in Montgomery, Alabama. A transcript of the hearing is of record. The Board previously remanded the claim for further development, specifically for a new VA examination to determine the nature and etiology of the Veteran's neurologic abnormalities. 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 Regrettably, the Board finds that further development is needed to adjudicate this claim. In its March 2012 remand, the Board requested that the RO afford the Veteran a VA examination to ascertain the nature and etiology of any neurologic abnormality. The examiner was specifically asked to comment on whether it was at least as likely as not that the Veteran's neurologic abnormality was associated with his service-connected DDD. The Veteran was scheduled for a VA examination, and, according to a July 2012 print out, the examination was "CANCELED BY MAS." It was determined in an August 2012 internal e-mail that the Veteran did not receive notice of the examination because the notice was sent to an incorrect address. A July 2012 note on the examination request confirms that the Veteran's address in VBA differs from his address in VHA databases. It does not appear that VA has attempted to reschedule the examination through notification to the appropriate address. Moreover, in a March 2014 brief, the Veteran's representative confirmed that the Veteran did not receive notice prior to the VA examination. Review of the Veteran's physical and electronic claims file does not indicate that the Veteran has been provided a fair opportunity to attend VA examination with adequate notice, as directed by the Board's March 2012 remand. In light of this deficiency, the RO's development fails to comply with the Board's March 2012 remand directives and is inadequate to decide the claim. Thus, the RO should afford the Veteran a VA examination for a neurologic abnormality, in compliance with the March 2012 remand. See Stegall v. West, 11 Vet. App. 268 (2011). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any additional relevant evidence that may have come into existence since March 2012. 2. Following the above development, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any lower extremity neurologic abnormalities. Notification of the time, date, and place of said examination must be documented in the Veteran's claims file. The claims file shall be made available to and reviewed by the examiner, including a copy of this remand and the March 2012 remand. The examiner shall also obtain from the Veteran a full relevant medical history as well as a thorough description of his past and current relevant symptomatology, to include onset, frequency, length/duration, and severity. All assessments, tests, studies, and/or evaluations deemed necessary shall be performed. This shall include, at a minimum, those necessary to procure the information specified in Diagnostic Codes 8520 to 8730 of 38 C.F.R. § 4.12a, as applicable. An opinion as to whether or not the Veteran has manifested any diagnosable lower extremity neurologic abnormality during the period on appeal beginning October 28, 2010, thereafter shall be rendered by the examiner. Specific comment shall be made on the other diagnoses of record in doing so. For each such disability diagnosed, the examiner shall opine whether it is at least as likely as not (i.e. a 50 percent probability or greater) associated with the Veteran's lumbosacral strain with DDD. A complete rationale, to include specific comment on the pertinent medical and lay evidence of record, shall be provided in this regard. All of the above actions shall be documented in the examination report. 3. Upon completion of the above-requested development, the RO should readjudicate the claim on appeal, taking into account all available evidence and conducting any additional development deemed necessary. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the Appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2013). _________________________________________________ JONATHAN B. KRAMER 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) (2013).