Citation Nr: 1752066 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-38 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an evaluation in excess of 10 percent for cervical spine disability prior to September 2, 2015, and in excess of 20 percent since September 2, 2015. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from June 1973 to June 1993, including service in Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, increasing the Veteran's disability evaluation for his service-connected cervical spine disability from noncompensable (0 percent) to 10 percent, effective as of January 30, 2009. Subsequently, in a July 2009 rating decision from the RO in St. Louis, Missouri, the Veteran's 10 percent evaluation was continued. The Veteran appealed the underlying decision in a Notice of Disagreement received in December 2009. Jurisdiction was subsequently transferred to the RO in Wichita, Kansas. In a February 2017 decision, the evaluation for the Veteran's service-connected cervical spine disability was increased from 10 percent to 20 percent disabling, effective, September 2, 2015. This case was most recently before the Board in June 2017, when the Board remanded the issue for further development. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND When the Board last reviewed the case it found that all correspondences mailed to the Veteran after March 28, 2011, were insufficiently addressed. The Board indicated that it was unclear whether the Veteran's address consisted of just a street name, a street name with an apartment number, a street name with a P.O. Box, or just a P.O. Box. The Board concluded that it was unclear regarding how many post-March 2011 correspondences, including notice and assistance letters pertaining to the prior Board remand directives, actually reached the Veteran. On remand, the AOJ was directed to contact the Veteran via telephone, his representative, and/or other appropriate parties to verify the Veteran's current address, and update the Veteran's information accordingly within the record. Upon review of the record, the Board finds that there is no indication that the AOJ attempted to comply with the aforementioned June 2017 remand directive. Accordingly, the claim must be remanded again for compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding the increased rating claim for the Veteran's service-connected cervical spine disability, when the Board last reviewed the case, it noted that following the most recent September 2015 VA examination, it was determined that adequate VA examinations of the joints must, if possible, note facial expressions of pain, crepitation in soft tissues and joint structures, and test for pain throughout range of motion in various ways. See Correia, 28 Vet. App. at 168-70; 38 C.F.R. § 4.59 (2017). The joints involved "should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." See 38 C.F.R. § 4.59. Thus, the Board found the September 2015 examination inadequate for rating purposes and remanded the claim for another VA examination to assess the current severity of the Veteran's cervical spine disability. Likewise, upon review of the record, there is no indication that the AOJ attempted to schedule the Veteran for the requested VA examination. Therefore, the Board finds that the originating agency failed to substantially comply with the June 2017 remand directives. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the claim must be remanded for an adequate VA examination. Since a remand is required, development to obtain any outstanding records pertinent to the Veteran's claim should also be completed while the case is in remand status. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following actions: 1. Contact the Veteran (via telephone), his representative, and/or other appropriate parties to verify the Veteran's current address. Update the Veteran's information accordingly. Every attempt to verify this information, even if unsuccessful, should be documented in the claims file. 2. Then, the AOJ should mail all outgoing correspondences (notices, decisions, forms, etc.) dated after March 28, 2011, to the Veteran at his updated address, if it is obtained. This should include, but is not limited to, the development letter asking the Veteran to provide VA with medical evidence from private providers (such as KUMC) and/or to provide VA with a medical release form to obtain these records on his behalf (December 21, 2016, and February 8, 2017, letters were sent to an insufficient address). Any returned mail should be documented in the claims file. 3. Thereafter, the AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 4. The Veteran should be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected cervical spine disability. The Veteran should be notified of his scheduled examination once Remand Directive Number 1 (verification of current address) has been completed. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 5. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 6. The AOJ should also undertake any additional development deemed necessary. 7. Then, the AOJ should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is recertified for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ B. MULLINS 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) (2017).