Citation Nr: 1612166 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 09-34 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for residuals of gunshot wounds to the back, buttocks, and right ribs. 2. Entitlement to service connection for residuals of a stab wound to the left chest. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to September 1983, which was preceded by a period of active duty for training from August to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. It was previously before the Board in June 2013, when the Board determined that new and material evidence had been received by VA to permit reopening of a previously denied claim for service connection for residuals of a gunshot wound to the back, and that reopened claim, as well as the claims for service connection for residual of a gunshot wound to the buttock and right ribs and a stab wound to the left chest were remanded so that additional development could be completed. Following attempts by the Agency of Original Jurisdiction (AOJ) to complete the actions on remand, this case was returned to the Board for further review. All issues on appeal are herein REMANDED to the AOJ and the AOJ will advise the Veteran in writing if additional actions are needed on his part. REMAND The primary development sought by the Board through its June 2013 remand was the conduct of an additional VA medical examination and solicitation of medical opinions with respect to questions raised by the record. A copy of the Board's remand was sent to the Veteran at an address on [redacted] in [redacted], Virginia, which appears also to be the address which the VA Medical Center in Hampton, Virginia made use of in attempting to contact the Veteran on remand, and which the Veteran indicates has never been his address of record. On remand, the AOJ arranged through the VAMC Hampton to afford the Veteran the needed VA medical evaluation; however, the AOJ utilized the address on [redacted] in [redacted] to notify the Veteran of the date and time he was to report for that examination. The record reflects that the Veteran failed to report for VA examinations involving the back and scars, requests for which were initiated by the AOJ in June 2013 and sent to the [redacted] address. A supplemental statement of the case was then mailed to the Veteran, continuing the prior denial, at that same address. Upon return of the case to the Board, the Board advised the Veteran through its letter of September 2013 to him at the [redacted] address that it had again received his case for review. The record further indicates that a Board employee in October 2013 noted that the Veteran's address was on [redacted] in [redacted], Virginia, and that the Veteran in May 2014 contacted the VA's National Call Center for the purpose of advising VA that he had not received a request at his home address on [redacted] in [redacted], Virginia, for him to appear for one or more VA medical examinations in September 2013 at the VAMC in Hampton, Virginia. He also reported that he never been to the VAMC Hampton and only made use of the Richmond and Salem VAMCs. Additionally, review of the record indicates that since at least late 2011, the Veteran's address of record was on [redacted] in [redacted], Virginia. Based on the aforementioned scenario, the requested development has not been accomplished and it is emphasized that such failure has occurred through no fault of the Veteran. Further actions are thus necessary to ensure that the development sought in 2013 by the Board is accomplished. Accordingly, this case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed residuals of a gunshot wound to the back, buttock, and right ribs, as well as a stab wound to the left chest. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is requested to provide the following opinions and for each such opinion, a complete rationale: a) Diagnose all current gunshot wound residuals, to include to the low back, right ribs, and right buttocks. b) Diagnose all current low back disability. c) Is there clear and unmistakable evidence (i.e., it is undebatable) that the Veteran's 1975 gunshot wound, which pre-existed his active service, was not aggravated by service or that any increase in disability was due to the natural progression of the disease (taking into consideration the service treatment records showing complaints and treatment for back pain and a possible renal disability, as well as the Veteran's account of pertinent symptoms and manifestations)? Please identify any such evidence with specificity. d) If the answer to (c) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that any currently diagnosed low back disability had its onset in service? e) Diagnose any scars or residuals of a stab wound to the left chest. f) Opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's contended tender left chest scar, or other identified residual, is etiologically related to any incident of active service, to include the wound to the left chest documented in service? 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to obtain clarifying medical data and opinions and to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2015) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. E. LARKIN 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).