Citation Nr: 1807364 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-31 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating for low back strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1974 to August 1976 and from October 1976 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that in his November 2011 substantive notice of appeal, the Veteran requested a Board Videoconference hearing. In a November 2016 substantive notice of appeal, the Veteran indicated that he no longer desired a Board hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2017). This matter was last before the Board in July 2017, at which time the Board remanded it for further development, to include a new VA examination. For the reasons discussed below, the Board finds that a further remand is required. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In February 2013, the Veteran was given a diagnosis of lumbosacral strain/sprain, intervertebral disc syndrome of the lumbar spine with left sciatic and femoral nerve involvement, and associated radiculopathy. In a December 2016 VA Form 646, the Veteran's representative stated that the Veteran asserted a worsening of his low back disability since his last evaluation. The Board remanded this matter in July 2017 with instructions to schedule the Veteran for a new VA examination to determine the current manifestations and severity of the Veteran's low back disability, as well as to comply with the United States Court of Appeals for Veterans Claims' (Court) ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). On August 2, 2017, VA contacted the Veteran who provided an address that was different from the PO box of his custodian and stated that all letters should be sent to him as it takes "several days to get his mail" from his custodian (see Report of General Information, dated August 2, 2017). Additionally, the Veteran instructed that his custodian be deleted. A subsequent development letter was sent to the address provided by the Veteran, which was returned as undeliverable. VA again contacted the Veteran on August 3, 2017, who stated that he had moved and provided a new address (see Report of General Information, dated August 3, 2017). The Board notes that there is no indication any mail was ever sent to this address. In October 2017, VA resent the August 2017 development letter to the PO Box listed for the Veteran's custodian and C&P Examination Inquiry screens dated September 6, 2017 and November 22, 2017 show the address provided on August 2, 2017. A Supplemental Statement of the Case (SSOC) was sent to the PO Box listed for the Veteran's custodian. The Board acknowledges that the Veteran failed to appear for a VA examination scheduled for October 2017 and failed to RSVP for an examination in December 2017. However, the Board notes that in a November 2015 rating decision, the RO found the Veteran to be incompetent to handle disbursement of his funds, and as such, appointed a custodian for the Veteran. Furthermore, it does not appear that VA attempted to contact the Veteran at his last provided address (on August 3, 2017), and the Board is unsure whether the Veteran's custodian was notified of the scheduled examinations. See generally, Barrett v. Shinseki, 22 Vet. App. 457, 461 (2009) (notice rendered insufficient where it is provided to a known incompetent); see also 3.159(f) (2012); M21-1MR, Part 1, subpart 2, sec.A, chap. 1. Therefore, the Board finds that in scheduling the Veteran for another examination, the RO must send notice of the examination to both the Veteran and his custodian. They should be made aware, however, that pursuant to VA regulation, when a claimant, without good cause (illness or hospitalization of the claimant, death of an immediate family member, etc.) fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record, or in certain cases such as a claim for an increased rating, it shall be denied. 38 C.F.R. § 3.655. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, completion of step one above, schedule the Veteran for a VA examinations with an appropriate clinician to determine the manifestations and current severity of his low back strain. Provide notice of the scheduled VA examination to the Veteran and his custodian and notify them that the consequences for failure to report for an examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for a scheduled examination, documentation in the record must show that notice scheduling the examination was sent to the last known address(es). It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his symptoms of low back strain. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the joint. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should discuss whether the Veteran has ankylosis of the thoracolumbar spine and, if so, whether it is favorable or unfavorable. The examiner must document the number of weeks, if any, during the past 12 months that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner should provide an opinion indicating whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed femoral nerve involvement , or any other neurological disorder found to be present, is due to or a result of the Veteran's service-connected low back strain. If it is determined that he does have femoral nerve involvement, or any other neurological disability, related to his lumbar strain disorder, the examiner must identify the nerve(s) involved. The each nerve, the examiner must determine whether the disability is mild, moderate, or severe in degree. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL A. PAPPAS 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).