Citation Nr: 1757716 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-18 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, the Board notes that the October 2013 Board decision found new and material evidence sufficient to reopen the previously denied claim of entitlement to low back disability. This matter was remanded by the Board in October 2013 and again in June 2016 for additional development. The matter has been returned to the Board for appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, review of the record reveals that the claims must be remanded for additional development prior to appellate consideration. In its October 2013 decision, the Board determined that providing the Veteran with a medical examination and/or obtaining a medical opinion is necessary to make a decision on this issue. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board remanded, in pertinent part, for such development. The Veteran was scheduled for a VA examination for which he failed to appear; however, it was unclear whether the Veteran received sufficient notification of the examination. Specifically, developmental letters were returned as undeliverable due to an insufficient address. Consequently, the Board remanded this matter again in June 2016 to ensure compliance with the development previously ordered by the Board. In doing so, the Board instructed the AOJ to, in pertinent part, verify the Veteran's current mailing address and schedule the Veteran for a VA examination. In July 2016, the RO obtained an Experian credit report which reflected a [REDACTED] address as the Veteran's most current address. A report of general contact dated in April 2017 reflects the RO attempted to contact the Veteran via telephone; however, it was unable to verify the Veteran's address at that time. The RO was able, however, to extract an apparent updated address, i.e., on [REDACTED], from the Veteran's Orlando VA Medical Center (VAMC) records dated in December 2016. The Veteran failed to RSVP for his scheduled VA examination. The related printout indicates the notification was sent to the [REDACTED] address. The record reflects subsequent correspondence by the Veteran (unrelated to the issue on appeal) indicating a [REDACTED] address as his current mailing address. As such, it remains unclear whether the Veteran received sufficient notification of the scheduled examination. The Board notes that "it is the burden of the veteran to keep VA apprised of his whereabouts . . . [i]f he does not do so, there is no burden on the part of VA to . . . find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see generally Wood v. Derwinski, 1 Vet.App. 190, 193 (1992) (noting that "[t]he duty to assist is not always a one-way street"). Neither the Veteran nor his representative has contacted VA to provide updated contact information. Nevertheless, considering all the surrounding circumstances, the Board finds that a final effort to provide the Veteran with a medical examination and/or obtain a medical opinion is appropriate in this case. Accordingly, the case is REMANDED for the following action: 1. Make an additional attempt to verify the Veteran's current mailing address, including contacting the Veteran's representative to verify the Veteran's contact information. If a current address cannot be verified, notifications should be directed to the [REDACTED] address, which the most recent correspondence reflects as the current mailing address and the [REDACTED] address listed for his appointed Power of Attorney. 2. Thereafter, schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of any diagnosed low back disability. A notice reflecting the date of the scheduled VA examination should be sent to the Veteran and his representative. The Veteran should be notified that it is his responsibility to report for any scheduled VA examination, and that failure to appear, without good cause, will result in the claim being adjudicated based on the evidence of record. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following: Does the Veteran have a low back disability? If so, the examiner should identify whether it is as likely as not (i.e., a 50 percent or better probability) that such disability is caused by, or otherwise etiologically related to military service. Any opinion rendered should reflect consideration of the Veteran's lay statements regarding ongoing symptomatology, and discuss the January 1987 motor vehicle accident (MVA). The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. In the event the Veteran fails to appear for the scheduled VA examination, the RO should arrange an appropriate medical professional to prepare a medical opinion based on the evidence of record with respect to the nature and etiology of any diagnosed low back disability. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following: Does the Veteran have a low back disability? If so, the examiner should identify whether it is as likely as not (i.e., a 50 percent or better probability) that such disability is caused by, or otherwise etiologically related to military service. Any opinion rendered should reflect consideration of the lay statements of record regarding onset of symptomatology in 1972, and discuss the January 1987 motor vehicle accident (MVA). The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran 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).