Citation Nr: 18156262 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-51 735 DATE: December 7, 2018 REMANDED Service connection for a left knee disability is remanded. Service connection for a left foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to July 1989. He testified before the undersigned Veterans Law Judge during a February 2017 Travel Board hearing and a transcript of that proceeding is of record. In November 2017, the Board reopened the previously and finally denied service connection claim for a left knee disability and remanded both service connection claims on appeal for development. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the 2017 remand for the following reasons. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the AOJ did not properly notify the Veteran when attempting to secure his cooperation in the development of the claims pursuant to the remand, including requesting releases needed to request private treatment records regarding both claims and scheduling the VA foot examination. VA has been on notice of his chronic homelessness, including his recent (and possibly ongoing) period of homelessness while this appeal was in remand status. See, e.g., December 1, 2017 VA HUD / VASH social work note (clearly documenting Veteran’s homelessness and engagement in VA services for homeless veterans very soon after AOJ’s November 2017 post-remand notice requesting releases, and very soon before December 12, 2017 VA foot examination notice). However, the AOJ failed to comply with VA’s special procedures for notifying homeless veterans set forth in 38 C.F.R. § 1.710. For instance, correspondence may be delivered to the Agent Cashier of a VA medical facility, if the veteran attends that facility or is likely to attend that facility. It is very likely that the Veteran did not respond to the AOJ’s November 2017 request for releases, or the December 2017 notice regarding the VA foot examination, due to not receiving such documents. It appears he has had at least 3 different addresses throughout 2018. On remand, the AOJ must document its compliance with the necessary procedures when attempting to develop private treatment records and scheduling the requested VA foot examination, unless it clearly confirms and documents that he has obtained a fixed address and is reachable by the usual means. The Veteran is advised that VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, he must cooperate in obtaining the evidence necessary to adjudicate these claims, including keeping his contact information up-to-date and attending the scheduled VA examination (or promptly communicating with VA why he cannot attend a scheduled VA examination). See, e.g., 38 C.F.R. §§ 3.159 (c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records) and 3.655(b) (setting forth potential consequences when a veteran fails to appear for a scheduled examination). The Veteran is advised that his failure to appear at a scheduled VA examination without good cause may result in the AOJ deciding his claim(s) based on the available medical evidence, and if appropriate, denied. See 38 C.F.R. § 3.655. Second, the 2017 VA addendum nexus opinion regarding the left knee claim was incomplete to the extent that it did not consider all pertinent evidence obtained since the June 2015 VA knee examination. Specifically, the examiner did not expressly consider the Veteran’s relevant state correctional treatment records received in April 2017, including at least one from the early 1990s (i.e., relatively soon after his in-service left knee issues in the late 1980s). See October 1992 state DOC medical examination report (finding abnormal lower extremity strength and range of motion; noting in-service left knee surgery in late 1980s). Finally, various documents that the AOJ recently mailed to the Veteran have been returned as undeliverable, including a response to his Privacy Act request and an accompanying enclosure. See April 2018 returned mail (March 2018 Privacy Act letter to Veteran noting separation document enclosed). As the Board is remanding this appeal for the reasons discussed above, the AOJ should attempt to re-send those documents to him (and document compliance with the special notice procedures for homeless veterans summarized above). The matters are REMANDED for the following action: 1. Considering evidence of the Veteran’s current homelessness, document compliance with all notice procedures in 38 C.F.R. § 1.710(d) regarding all correspondence pertaining to this appeal. 2. Attempt to re-send the Veteran all documents that have been returned as undeliverable since March 2018, including the letter returned in April 2018 (March 2018 Privacy Act response letter to the Veteran and enclosed separation document). Document compliance with the notice procedures in 38 C.F.R. § 1.710(d). 3. Send the Veteran and his representative a letter (documenting compliance with the notice procedures in 38 C.F.R. § 1.710(d)) asking the Veteran to complete releases authorizing the AOJ to request outstanding non-VA treatment records relevant to his left knee and left foot claims, including but not limited to: Pinellas County Healthcare; Pinellas Medical Associates; All Florida Orthopaedic. Document all negative responses. If any requested private treatment records are unavailable, then notify the Veteran (documenting compliance with the notice procedures in 38 C.F.R. § 1.710(d)). 4. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 5. Return the Veteran’s claims file to the June 2015 / December 2017 VA knee examiner (or to another examiner if that person is no longer available) for an addendum medical opinion. The examiner should note his or her review of the complete claims file. The examiner must answer the following question with a full supporting rationale: Is it at least as likely as not (probability of 50 percent or greater) that the Veteran’s current left knee disability began during or is otherwise related to service? Please expressly consider: state DOC medical records received in April 2017, including an October 1992 examination report (finding abnormal lower extremity strength and range of motion and noting in-service left knee surgery in late 1980s); Veteran’s statements / testimony reporting continuous left knee symptoms e.g., pain, since documented left knee issues during service. If the examiner cannot provide an opinion without resorting to mere speculation, then he or she should explain why. 6. Schedule a VA examination and medical opinion for the left foot claim. The examiner should conduct any testing deemed necessary and note his or her review of the complete claims file. The examiner must answer the following questions with full supporting rationales: (a.) List all current left foot diagnoses from December 2014 to the present. Please expressly consider: SSA records received in November 2017, including enclosed non-VA / private treatment records suggesting possible neurological / nerve diagnoses for Veteran’s left foot complaints such as pain, weakness, and burning (e.g., May 2015 private NCS report finding mild generalized peripheral neuropathy of the lower extremities; April 2015 private neurological treatment record diagnosing probable diabetic neuropathy, lumbar radiculopathy causing mild foot drop); June to July 2018 VA inpatient notes (diagnosing left foot plantar fasciitis). (b.) Is it at least as likely as not (probability of 50 percent or greater) that any current left foot disability began during or is otherwise related to active service? (c.) Is it at least as likely as not (probability of 50 percent or greater) that any current left foot disability was caused by (i.e., proximately due to) the service-connected left ankle condition? (d.) Is it at least as likely as not (probability of 50 percent or greater) that any current left foot disability was aggravated by (i.e., worsened by) the service-connected left ankle condition? If the examiner cannot provide an opinion without resorting to mere speculation, then he or she must explain why. If the AOJ is unable to schedule the requested VA foot examination for any reason, such as the Veteran’s failure to report or “R.S.V.P.” without good cause, then the AOJ still must schedule the requested medical opinions based on reviews of the evidence of record. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel