Citation Nr: 1800834 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-40 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1954 and from October 1961 to August 1962. He also had active duty for training (ACDUTRA) from June 1985 to July 1985. These matters come before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In that decision, the RO denied the Veteran's applications to reopen his previously denied claims for service connection for low back and right hip disabilities. In June 2017, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In August 2017, the Board reopened the previously denied claims of service connection for low back and right hip disabilities, and remanded the underlying service connection claims to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In August 2017, the Board remanded the claims on appeal to the AOJ for additional development, to include affording the Veteran VA examinations for his claimed low back and right hip disabilities. A Compensation and Pension Examination Inquiry reflects that examinations of the back and hip were requested on September 14, 2017. A September 15, 2017 VA treatment note shows that the Boston VA Medical Center (VAMC) sent a letter to the Veteran, which stated that they had attempted to contact the Veteran by phone to schedule a VA examination, but that they had been unable to reach him. The letter further stated that they had placed the VA examination request into an RSVP status while they attempted to contact the Veteran by mail, and assigned a RSVP date of September 25, 2017. The letter noted that this date was not an appointment, but indicated that a response by the RSVP date was necessary. This September 15, 2017 VA treatment note, along with a September 20, 2017 addendum to this treatment note, reveal that the Veteran's spouse reported that the Veteran was at a rehabilitation facility, that there was no current date for release, that she would advise the rehabilitation facility that the Veteran needed to schedule an appointment, and that she was aware of the September 25, 2017 RSVP date. Another document shows that the examinations were later cancelled on September 26, 2017 because the Veteran failed to RSVP. However, in a November 2017 correspondence, the Veteran requested that he be rescheduled for VA examinations for his claimed low back and right hip disabilities. He explained that he "missed" his VA examinations because he was hospitalized and in a short term rehab facility for approximately three months because he fell and broke his right hip. An August 2017 VA telephone care note reveals that the Veteran then reported that he fell and broke his right hip, that he was at Jordan Hospital, and that he was being sent to rehabilitation. It is noted that there are specific consequences for a claimant's failure without good cause to report for a VA examination. See 38 C.F.R. § 3.655 (2017). However, illness or hospitalization of the claimant is an example of good cause. 38 C.F.R. § 3.655(a). Therefore, in light of the above, the Board finds that good cause has been shown for the Veteran's failure to respond to the VAMC's requests to schedule a VA examination, and that a remand is necessary to again attempt to afford the Veteran VA examinations for his claimed low back and right shoulder disabilities. As the matters are being remanded, updated VA and private treatment records should also be obtained. In this regard, the claims file currently contains VA treatment records dated until July 2011 and from June 2016 to September 2017. The Board acknowledges that in the prior August 2017 remand, the Board made a typographical error in instructing the AOJ to obtain outstanding VA treatment records dated since February 2016 instead of since July 2011, and apologizes for the error. In addition, as mentioned in the August 2017 remand, the Veteran testified at the June 2017 Board hearing that he continued to receive private treatment from Dr. R.S.O. for his back and right hip disabilities, and the record currently contains treatment records from Dr. R.S.O. dated only as recent as August 2014. Moreover, the August 2017 VA telephone care note mentioned above indicated that the Veteran recently received treatment for his right hip at Jordan Hospital. To ensure that the record is complete, VA treatment records dated from July 2011 to June 2016 and since September 2017, and private treatment records from Dr. R.S.O. and from Jordan Hospital, if any, should also be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain outstanding VA treatment records, to include records dated from July 2011 to June 2016 and since September 2017, and private treatment records, to include records from Dr. R.S.O. and from Jordan Hospital, if any. 2. Schedule the Veteran for a VA examination as to the nature and etiology of his current low back disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first identify any current (since approximately August 2011, the date of the filing of the Veteran's claim) low back disability. Then, as to each such disability, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in or is otherwise related to service. The examiner should also express an opinion as to whether the disability is either (a) caused or (b) aggravated by the Veteran's service-connected left knee disability. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion(s). The absence of contemporaneous medical evidence should not be a basis for the opinion(s). A complete rationale should accompany any opinion provided. 3. Schedule the Veteran for a VA examination as to the nature and etiology of his current right hip disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first identify any current (since approximately August 2011, the date of the filing of the Veteran's claim) right hip disability. Then, as to each such disability, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in or is otherwise related to service. The examiner should also express an opinion as to whether the disability is either (a) caused or (b) aggravated by the Veteran's service-connected left knee disability. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion(s). The absence of contemporaneous medical evidence should not be a basis for the opinion(s). A complete rationale should accompany any opinion provided. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Jonathan Hager 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).