Citation Nr: 1632331 Decision Date: 08/15/16 Archive Date: 08/24/16 DOCKET NO. 12-06 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right ankle disability. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active military service from December 1990 to May 1991 with 4 months and 25 days of prior active service. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In March 2013, the Veteran testified during a hearing at the RO before the undersigned. A transcript of the hearing is of record. In October 2014 the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. In May 2016 the Veteran expressed his wish to revoke the representation of his former representative and the POA has been revoked. He also expressed explicitly his desire to represent himself. Hence, the Board finds it is not necessary to clarify representation. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds it is necessary to remand this matter once again, as will be discussed below. The Veteran submitted additional evidence following the January 2015 supplemental statement of the case that is pertinent to this appeal. Of note a 37 page document marked "Returned Mail" is noted to contain some medical records regarding the lumbar spine dated in January 2010, in addition to a February 2010 examination conducted for a disability claim which described lumbar spine problems since service. See documents marked "RETURNED MAIL" dated 10/5/15 at pages 5-8. These documents are not previously of record and were received in February 2015 after the most recent SSOC was issued in January 2015. He did not explicitly waive AOJ consideration of such evidence. The Board acknowledges Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, which amend 38 U.S.C.A. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In this case, the Veteran's substantive appeal was received prior to February 2, 2013 so waiver was necessary. Therefore, the Board finds that remand for AOJ review of this pertinent evidence is necessary. Additionally, it appears that the February 2010 Disability Evaluation submitted by the Veteran might pertain to a Social Security disability claim; thus, clarification is necessary to determine whether such a claim has been filed with SSA and obtain these records. Likewise, it appears that he has sent medical releases for records in February 2015 (see pg 4-5 of 37 page document marked "Returned Mail"). The RO should take steps to obtain these records, to include requesting updating authorization, as needed. The Board notes that the Veteran has failed to appear for two VA examinations scheduled in May 2012 and again in January 2015, with the second examination that had been ordered pursuant to the Board's remand directives. Review of the January 2015 Report of Contact revealed that the notice was sent to his most recent address. The January 9, 2015 Report of General Information-Phone Contact Attempt also indicated that attempts to contact him by telephone were unsuccessful and that individuals answering the phone did not know who he was. However the Board notes that the last name of an individual answering the phone closely resembles the Veteran's aka name acknowledged by the VA. The Board further notes that there is evidence of multiple possible AKA's including one that matches the last name of an individual who answered the phone. See 34 page document marked as "RETURNED MAIL dated 10/5/15 at pg 1. The Board acknowledges that the Veteran's use of multiple addresses and possible aliases has resulted in difficulties contacting him for the purpose of scheduling an examination. However, given the need to remand this matter for additional development, the Board finds that a final attempt to provide the Veteran with an examination should be made. The Board reminds the Veteran that failure to report for any scheduled examination may cause his claims to be denied. See 38 C.F.R. § 3.655 (20135). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran at his most recent address of record and request that he clarify whether he has ever filed a disability claim with the Social Security Administration (SSA). If he confirms such a claim with SSA, obtain records from the SSA. If the records cannot be obtained after reasonable efforts have been made, the Veteran should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e) . 2. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has recently received, and also obtain records from medical providers cited in medical releases for records sent in February 2015. All such available documents should be associated with the claims file. 3. Schedule the Veteran for a VA orthopedic examination for the purpose of determining the nature and etiology of his low back and right ankle disabilities. The examiner should review the claims file in conjunction with the examination. A notation that this review has taken place should be annotated in the examination report. All appropriate diagnostic testing, including X-rays, should be conducted. All pertinent pathology should be annotated in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's currently diagnosed low back and right ankle disabilities had their clinical onset during his active duty or are otherwise related to such service. In answering these questions, the examiner should address the Veteran's assertions of continuity of symptomatology dating from his military discharge. A complete rationale should be given for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order 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). _________________________________________________ ERIC S. LEBOFF 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).