Citation Nr: 1608603 Decision Date: 03/03/16 Archive Date: 03/09/16 DOCKET NO. 09-41 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected bilateral pes planus. 2. Entitlement to a rating in excess of 10 percent for service-connected low back syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Roggenkamp, Associate Counsel INTRODUCTION The Veteran had active service from February 1984 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The case was remanded in July 2013 and August 2014 for additional development. The Veteran testified at a travel board hearing in June 2014 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. The Veteran submitted a waiver of his right to have the RO review newly submitted evidence and allowing the Board to proceed with an appeal. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the August 2014 remand, the Board directed that the Veteran should be scheduled for VA examinations to determine the current severity of the symptoms of his claimed conditions. Later in August 2014, the RO scheduled examinations for the Veteran via a Compensation and Pension Exam Inquiry. In the "General Remarks" section of this inquiry, it was noted that the Veteran's address provided by the VBA was different from the information in the VHA's database, and there was a request to verify the Veteran's address for accuracy before mailing a notification letter. In September 2014, another Compensation and Pension Exam Inquiry noted that the Veteran failed to report for his scheduled examinations. The Veteran's address listed on the Inquiry is different from the address given by the Veteran in his most recent communications with the RO. The Veteran's representative, in a February 2016 appellant brief, argues that the Veteran failed to receive notice of the examination, and should be afforded the opportunity to attend rescheduled examinations. The Board agrees. See, e.g., Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010)) (finding that when an appellant expressly argues that they were unable to attend an examination due to lack of proper notice, VA could not rely on evidence outside the record-specifically, the post-hoc affidavits of AOJ employees-in establishing that the agency "had a regular practice of providing [advance] notice of VA examinations"). The case is remanded to clarify the Veteran's address and schedule him for VA examinations for his current conditions. Accordingly, the case is REMANDED for the following action: 1. Clarify the Veteran's current mailing address, and take steps to ensure the correct address is updated across the Veteran's claims databases, including VBMS and VACOLS. 2. Once the Veteran's address is clarified, schedule the Veteran for examinations with an appropriate examiner to determine the current severity of his service-connected bilateral pes planus and low back syndrome. The examiner should note all relevant pathology, and all indicated tests should be conducted. All functional impact should be described. The examiner should also indicate the effect such disabilities have on the Veteran's employment. In this regard, the examiner should be informed that the Veteran has offered lay assertions, in June 2014, of muscle spasm and limping or abnormal gait in the low back and swelling of the feet, and the examiner should thus provide comment as to the Veteran's lay assertions if such symptoms are not clinically apparent. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. 3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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 2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).