Citation Nr: 1808638 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-34 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating in excess of 10 percent for service-connected left knee medial meniscal tear with grade III chondromalacia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to October 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, March 2016, and March 2017, the Board remanded this claim for additional development. It has since been returned to the Board for further appellate consideration. In a September 2016 rating decision, the RO increased the evaluation of the Veteran's left knee disability to 10 percent effective September 4, 2008. This decision constitutes a partial grant of the benefits sought on appeal. Thus the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In March 2017, the Board remanded this claim to afford the Veteran an adequate VA examination. The AOJ scheduled the requested examination on April 6, 2017. A July 2017 deferred rating decision requested verification of the Veteran's address prior to rescheduling his examination. The AOJ mailed correspondences in July and August 2017 requesting that the Veteran provide his current mailing address and telephone number in order to reschedule an examination. These correspondences, along with several other communications, were returned as undeliverable. The most recent communication that was returned as undeliverable was sent to the Veteran's address currently on record in the Veterans Appeals Control and Locator System (VACOLS). The Board notes that the Veteran has experienced homelessness and, thus, has lacked a consistent mailing address. In an April 2016 Report of General Information, the Veteran's ex-wife stated that her phone was listed as a way to relay messages to the Veteran regarding his VA claim and it was safe to send a VA examination request to her. The Veteran subsequently attended his May 2016 VA examination. Currently, the exact whereabouts of the Veteran appear to be unknown as the last contact with the Veteran is found in an October 2017 social work note from the VA Southern Nevada Healthcare System Northeast primary Care Clinic, which listed the Veteran as homeless in Las Vegas, Nevada. At the time, the Veteran requested assistance in locating housing and stated that he was awaiting contact from VA's HUD-VASH program. The Veteran stated that he had a cellular phone; however, a phone number was not obtained. The Veteran also stated that he was receiving Social Security Disability Benefits (SSDI). The Board notes that the VA is not obligated to "turn up heaven and earth" to find a veteran. See Hyson v. Brown, 5 Vet. App. 262 (1993). However, it appears that several means of locating the Veteran have not been pursued. As mentioned above, the VA has contacted the Veteran's ex-wife regarding a prior VA examination, which the Veteran then attended. Additionally, it appears that the Veteran has sought housing assistance from a VA program and is also receiving SSDI, all of which may indicate the Veteran's whereabouts. Lastly, the Board notes that it does not appear that the AOJ has requested contact information from the Veteran's representative. On remand, VA should reach out to the Veteran's ex-wife, the HUD-VASH program, the Social Security Administration, and his representative to determine the Veteran's whereabouts and viable contact information. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran's ex-wife and the Veteran's representative to request confirmation of the Veteran's contact information. All attempts and responses must be documented in the claims file. 2. Contact the VA Southern Nevada Healthcare System Northeast Primary Care Clinic, the HUD-VASH, and the Social Security Administration and request confirmation of the Veteran's contact information. All attempts and responses must be documented in the claims file. 3. Contact the appropriate VA Medical Center(s) and 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 documented for the record. Required notice must be provided to the Veteran and his representative. 4. After completing the above actions, and if and only if the Veteran has been located and his address has been verified, provide the Veteran with an appropriate examination to determine the current severity of his service-connected left 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 examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). In addition, the examiner must address the following: a) Test the range of motion in active motion, passive motion, weight-bearing, and non-weight-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. b) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. 5. 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. 6. 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). 7. 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).