Citation Nr: 1801953 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 06-18 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1970 in the United States Marine Corps. He is a recipient of the Combat Action Ribbon. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter was remanded by the Board in June 2011, February 2013, January 2017, and July 2017 for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In January 2017, the Board remanded the matter so that the Veteran could be scheduled for a VA examination to determine the nature and etiology of his low back disorder. The VA medical opinion of record was found to be inadequate because the VA examiner did not address the Veteran's lay statements. A VA examination was scheduled in March 2017, however, the Veteran failed to report. In a February 2017 letter, the AOJ notified the Veteran that it had asked a VA medical facility to schedule him for an examination in connection with his claim and that they would notify him of the date, time, and place of the examination. However, the record indicated that the Veteran might not have received notice of the VA examination. A VA screen printout indicated that the VA medical facility called the Veteran and left a message on his voicemail and also sent a letter, but received no response. In a June 2017 brief presentation, the Veteran's representative noted that the VA examination notification letter was not of record and it was unclear whether it was sent to the correct address or that the VA medical facility telephoned the correct number. Therefore, in July 2017, this matter was again remanded for a VA examination. At that time, the Board noted that VBMS and the electronic Veterans Appeals Locator System (VACOLS) indicated that the Veteran lived at an address in Columbus, GA. However, the Veterans Health Information Systems and Technology Architecture (VISTA) indicated that the Veteran lived at an address in Phoenix City, Alabama. The Board further noted that the Veteran's telephone number was different in VISTA from the number listed in VBMS and VACOLS and that it was unclear whether the VA medical facility sent the notification letter to the correct address or that it contacted the Veteran at the correct telephone number. Subsequent to the July 2017 Remand, a July 2017 report of General information shows that the VA attempted to contact the Veteran to verify his address and telephone number to no avail. The RO also scheduled, and sent correspondence to the Veteran indicating so, a VA examination for September 14, 2017 for which the Veteran was again a no show as indicated by an October 2017 Web/HTML document. Nonetheless, in a November 2017 written brief presentation, the Veteran's VSO acknowledged the missed VA examination and the numerous attempts to contact the Veteran. The VSO indicated that they would make further attempts to contact the Veteran and asked that the Board remand this matter for a final attempt at a VA examination. Therefore, this is a final remand for the purposes of affording the Veteran a VA examination for his lower back disability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate steps to verify the Veteran's current mailing address and telephone number, to include attempting to contact the Veteran via the telephone numbers listed in VISTA, or contacting his representative or any other appropriate entity. All efforts must be documented in the claims file. 2. After making contact with the Veteran and/or his VSO, the AOJ should schedule the Veteran for a VA examination to obtain a medical opinion as to his claim of service connection for a low back disability. The claims folder must be made available to and reviewed by the examiner. The examiner should take a detailed medical history from the Veteran which history includes, among other things, any complaints, diagnoses, or treatment for his low back disability while in combat in the Republic of Vietnam. After a review of the claims file and an examination of the Veteran, the examiner should thereafter provide answers to the following questions: (a) Is it at least as likely as not that a low back disability is related to or had its onset in service? (b) Is it at least as likely as not that arthritis of the low back manifested itself in the first post-service year? In providing the requested opinions the examiner should specifically comment on the Veteran's February 2004 statement in which he reported he had low back pain while in the Republic of Vietnam and August 2004 Notice of Disagreement in which he reported, in substance, that his current low back problems started after he had to carry a full combat supply pack for 18 months while serving in the Republic of Vietnam. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must 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). 3. The Veteran must be given adequate notice of the date and place of any requested examination. This notice must be sent to his latest address of record. Advise the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In addition, attempt to contact the Veteran via telephone and notify him of the date, time, and place of the examination. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address and an attempt was made to contact him at his latest telephone number. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ TANYA SMITH 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).