Citation Nr: 1752404 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 04-15 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to September 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In July 2005, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In a February 2017 decision, the Board denied the Veteran's service connection claim for lumbar spine disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2017 Order, the Court vacated the Board's February 2017 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found the Board did not provide adequate reasons and bases for finding the Veteran did not have good cause for his failure to report for a scheduled VA examination. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND After examining the record, the Board finds that a remand is necessary and that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A, and to afford the Veteran an adequate VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). In February 2016, the Board remanded this case and instructed the RO to provide the Veteran with a VA examination to determine the etiology of any current back disability. The Veteran was scheduled for a VA examination in April 2016 and subsequently rescheduled for another VA examination in June 2016. A June 2016 VA compensation and pension examination inquiry report noted the Veteran failed to report for his June 2016 VA examination. Subsequently, an August 2016 compensation and pension examination inquiry report notes the VA examination was cancelled due to the Veteran being hospitalized. In an October 2016 letter, the Veteran asserted that he did not report for his VA examination because he never received a notification letter informing him one had been scheduled. The Veteran reported that he moved in April 2015, and that he contacted the VA in May 2015 to change his address. However, in the same letter the Veteran additionally stated that he did report for his scheduled VA examination in June 2016, and further stated that he showed a VA representative a copy of his May 2015 notice regarding his scheduled VA examination. The VA representative allegedly told the Veteran he did not have a scheduled VA examination that afternoon. Thereafter, the Veteran asserted he left the VA facility and called a VA representative in May 2015. Initially, the Board notes that the claims file does not contain any record showing the Veteran was hospitalized in either April or June 2016. Further, in his October 2016 letter, the Veteran did not assert that he missed his VA examination due to being hospitalized. Instead, the Veteran asserted that he did not report for his VA examination because he never received notification. Alternatively, in the same letter the Veteran asserted that he did, in fact, report for his VA examination and that he produced a copy of his VA notification letter to a VA representative, but that he was turned away. Moreover, the letter includes dates that are out of sequence; specifically, the Veteran refers to producing a May 2015 notice for a June 2016 VA examination, and subsequently reported contacting a VA representative in 2015 following being turned away from his June 2016 examination. Therefore, the Veteran's letter is both factually and logically incompatible making it substantially difficult to rely on or corroborate his account. However, the Board further notes that the claims file does not include copies of notice letters informing the Veteran of his scheduled VA examinations. In that regard, the claims file does include an April 2016 VA compensation and pension examination inquiry report listing the Veteran's former address. Additionally, a June 2016 VA compensation and pension examination inquiry report lists an address for the Veteran that is the same as a South Carolina detention center. The Board additionally notes the Veteran was scheduled for a VA eye examination in September 2017 and that a related VA compensation and pension examination inquiry report lists the Veteran's current address. The record reflects that the Veteran did report for that examination. Therefore, based on the VA compensation and pension examination inquiry report showing incorrect addresses for the Veteran at the time he was being scheduled for his VA lumbar spine examination, and in consideration that the Veteran did report for a recent VA examination in which the concurrent VA compensation and pension examination inquiry report listed his correct address; the Board will provide the Veteran with the benefit of the doubt and find that good cause has been shown as to why he did not report for his scheduled VA back examination. 38 C.F.R. § 3.655(a) (2017). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). As such, a new examination should be scheduled. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of any diagnosed back disability. The Veteran should be notified that failure to report to any scheduled examination, without good cause could result in a denial of his claims. See 38 C.F.R. § 3.655(b) (2017). The examiner should list each diagnosed back disability identified and provide an opinion concerning the following: Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability was incurred or aggravated as a result of active service? In rendering the requested opinion, the examiner should consider, in addition to the service treatment records, any post-service injuries to the back to include a November 1974 work-related injury, a 1975 sports injury, a March 1981 injury, and a 1985 motor vehicle accident. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 2. Then, readjudicate the claim on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).