Citation Nr: 1805157 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-25 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 30 percent for a left shoulder disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from July 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter was previously before the Board, most recently in July 2017, at which time the issue currently on appeal was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that additional development is necessary. In the July 2017 remand, the Board noted that it appeared from the record that the Veteran failed to report for a scheduled October 2016 VA examination because he was incarcerated. The Board found that there was no indication from the record that the Veteran was ever adequately notified of his scheduled VA examination, to include whether he was notified as to his potential to undergo an examination even while incarcerated, or to have medical personnel from the facility in which he was incarcerated perform the VA examination in the event that he was unable to report to a VA Medical Center. Therefore, the Board remanded the claim to afford the Veteran another opportunity to report for a VA examination to determine the current level of severity of all impairment resulting from his service-connected left shoulder disability. The record contains an August 16, 2017 "Exam Request" for a VA examination. An "Exam Request" dated September 12, 2017 indicates that the VA examination was cancelled. A September 12, 2017 "Report of General Information" indicates that the Veteran failed to report for the scheduled VA examination and that an attempt was made to contact the Veteran to determine if he had a valid reason for missing his appointment but he "refused phone call." The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination. 38 C.F.R. § 3.655. However, it is unclear whether the Veteran was properly notified of the scheduled VA examination. Review of the file does not reveal a copy of a letter notifying the Veteran of the scheduled examination. Moreover, the Veteran's representative has asserted that the Veteran did not receive notice of the scheduled VA examination. See December 2017 Appellate Brief. For these reasons, the Veteran should be afforded a final opportunity to appear at a VA examination for the disability on appeal. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). On remand, the AOJ should contact the Veteran and confirm his current address. Thereafter, he should be scheduled for a new VA examination. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c). The Veteran must be provided written notice of the time, date, and location of this examination, and the notice should also inform him of the consequences for failing to report to the examination. See 38 C.F.R. § 3.655(b). A copy of this notice letter must be associated with the claims file. Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (VA has the burden to demonstrate that notice was sent to the claimant's last address of record). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Contact the Veteran and confirm his current mailing address. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from the service-connected left shoulder disability. The claims folder should be made available to and reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner is requested to address the following: (a) Provide the current ranges of motion testing for pain on both active and passive motion as well as in weight-bearing and in nonweight-bearing states for the left shoulder and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that such testing is not necessary in this case, the examiner should clearly explain why that is so. In reporting the range of motion, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner should also express an opinion as to whether there would be additional functional impairment on repeated use over time or, during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, or if the examination is not conducted immediately after repeated use over a prolonged period of time, the examiner should still provide an estimate of additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to estimate or precisely determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so. (b) Review the prior shoulder examination in August 2008 and opine as to whether the above requested measurements for active and passive range of motion and in weight-bearing and nonweight-bearing would be similar if taken at the time of the prior examination, and if not, how they would have differed. Comprehensive rationales must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation. Examples include: additional information would be needed to provide the necessary opinion (in which case, the examiner should identify the additional information needed) or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. 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 the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice of the examination was sent to his last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completion of all of the above and any other development deemed necessary, readjudicate the appeal. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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 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 (2014). _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).