Citation Nr: 18159144 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-05 420 DATE: December 19, 2018 ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities. 3. Entitlement to an initial compensable evaluation for fracture first cuneiform right foot with failed fusion and degenerative changes of the talonavicular joint. 4. Entitlement to an initial compensable evaluation for scars of the right foot. 5. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities is remanded. Entitlement to an initial compensable evaluation for fracture first cuneiform right foot with failed fusion and degenerative changes of the talonavicular joint is remanded. Entitlement to an initial compensable evaluation for scars of the right foot is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2008 to January 2013. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was transferred to the VA Regional Office (RO) in Winston-Salem, North Carolina. The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. The Veteran contends that service connection is warranted for a back disability as it is related to service. Service treatment records note complaints of low back pain in August of 2010 following a helicopter crash four months prior. The Veteran was scheduled for initial VA examinations in connection with his claims on April 2014, but he failed to report. However, the Veteran asserted in his October 2016 formal appeal with attached correspondence that he never received notification of the VA examinations as he moved. Subsequently, the Veteran was scheduled for VA examinations in connection with his claims on February 2017, but again failed to report. However, it was noted in the examination request that the Veteran’s address/phone provided differed from the database information. The Board acknowledges that, under applicable law, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655 (b). In this case, however, a review of the record indicates that the notice of examinations may have been sent to the wrong address. Correspondence was returned to the RO as not deliverable to the Veteran in August and September 2016. In light of this evidence, it is questionable whether the Veteran received notice of the scheduled examinations. Accordingly, the Board is unable to presume that the Veteran was properly notified of the upcoming examinations so as to permit the application of 38 C.F.R. § 3.655 (b). See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As such, the Board finds that the Veteran should be afforded an additional opportunity to undergo VA examinations in connection with his appeal. On remand, the RO should undertake appropriate measures to verify the Veteran’s current address. Thereafter, the RO should schedule the Veteran for the appropriate VA examinations. The Veteran is hereby notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequence for failure to report for a VA examination without good cause for an original claim 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 the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. Finally, the issues of entitlement to 10 percent evaluation based on multiple, noncompensable, service-connected disabilities and entitlement to a TDIU are inextricably intertwined with the issues contained within this remand, and the Board defers ruling on these matters. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, with instructions to return the form to the RO. 2. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include requesting, with the Veteran’s assistance, all records from his previous employers, including any medical records and/or administrative decisions pertaining to disability benefits. All actions to obtain the requested records should be fully documented in the electronic claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 4. After the above development is completed, schedule the Veteran for a VA examination conducted by appropriate health care provider to determine the nature and etiology of his claimed back disability. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any back disability diagnosed during the pendency of this appeal, had its onset in service or is otherwise etiologically related to service, to include the aforementioned complaints in service of low back pain in August of 2010 following a helicopter crash four months prior. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. After the above development is completed, arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected fracture first cuneiform right foot with failed fusion and degenerative changes of the talonavicular joint with scars. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes, to include a discussion of the functional and occupational impact of the fracture first cuneiform right foot with failed fusion and degenerative changes of the talonavicular joint with scars. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel