Citation Nr: 1807779 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 09-45 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1986 to August 1992. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This claim was remanded in August 2014, April 2016, and July 2017 for additional development. It has since been returned to for further appellate consideration. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). Documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required to afford the Veteran a VA examination. In its July 2017 remand, the Board requested a VA examination to determine the nature and etiology of the Veteran's right knee disability. 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. Here, it appears that the AOJ requested a knee examination on September 12, 2017, and that the request was cancelled on September 25, 2017, on the basis that the Veteran failed to RSVP. An October 2017 report of general information reflects that the author called the Veteran to find out why he did not RSVP for the examination and received no response. In a January 2016 post-remand brief, the Veteran's representative stated that the Veteran "may have legitimate mitigating circumstance for not reporting for [his] examination and therefore, should be given another chance." The Board notes that this statement alone does not amount to good cause. However, as the claims file does not contain a letter scheduling the Veteran for his examination, the Board finds that the record is insufficient to determine whether proper notice of the VA examination was mailed to the Veteran so as to permit the application of 38 C.F.R. § 3.655 . See Kyhn v. Shinseki, 716 F.3d 572 (2013). Thus, the Board finds that the claim must be remanded in order for the AOJ to schedule the Veteran for a VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) including obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his right knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. The examiner must elicit a full history from the Veteran and consider the lay statements of record. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed right knee disability, to include osteoarthritis, degenerative or traumatic arthritis, and prepatellar bursitis had onset in, or is otherwise related to, active service. The examiner must specifically address the following: 1) the June 1991 and May 1992 STRs noting bilateral shin splints and leg pain aggravated by strenuous exercise; 2) the Veteran's April 2009 Notice of Disagreement where the Veteran indicated that he had consistent problems with his right knee due to excessive impact while running on paved roads during service; and 3) the March 2017 addendum opinion noting that the Veteran's occupation was as a service repair man which involved frequent kneeling and bending. 4. Notify the Veteran that it is his responsibility to report for any 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 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. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ 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).