Citation Nr: 1819043 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 09-36 977A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lower left leg disorder, including restless leg syndrome and mild tibial neuropathy, to include due to sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from December 1987 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, further development of the record is required to ensure that there is a complete record upon which to decide the claim of entitlement to service connection for a right shoulder disability. The June 2017 Board remand specifically requested a VA examination of the left leg be scheduled. The record does not show that notice for a scheduled VA left leg examination was provided to the Veteran. The April 2016 supplemental statement of the case indicates that attempts were made to contact the Veteran by telephone and in writing regarding his missed VA examination. The supplemental statement of the case states that a notification letter regarding the scheduled September 2017 examination was mailed in July 2017. It appears that the RO had an old address on file. In August 2017, mail was returned to the RO as undeliverable and included the same address of which the July 2017 letter was mailed. The Board is unable to discern if the Veteran received appropriate notice of a scheduled appointment for a VA examination. There is no indication that voicemails were left following attempted calls to the Veteran to confirm the VA examination. There is no indication that notification of the examination date and time were received by the Veteran. In a February 2018 statement the Veteran indicated that the notification was being mailed to the wrong address and provided an updated address. The Veteran also stated that he did not receive a phone call or voicemail regarding the examination, and the examination VA Appointments Summary did not include the date and time of the examination he missed. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the resulting actions are incomplete and do not substantially comply with the June 2017 Board remand requests. An examination must be scheduled for the Veteran and adequate written notice must be provided to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the nature and etiology of all lower left leg disabilities. Make sure the Veteran is properly notified of the upcoming examination. For each disability identified (other than lumbar radiculopathy), to include restless legs syndrome and mild tibial neuropathy, the examiner should provide an opinion as to whether the disability at least as likely as not (50 percent probability or more) had its onset during service or was caused by an incident in service or is caused or aggravated by (beyond the natural progression of the disease) a service-connected disability. The claim folder, including this remand, must be sent to the examiner for review; and consideration of such should be reflected in the completed examination report. All indicated tests or studies must be completed. The examiner should describe all findings in detail. Explanatory rationale must be provided for all opinions expressed. If the requested opinion(s) cannot be made without resorting to mere speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to mere speculation. All current lower left leg disabilities, including those diagnoses made since the Veteran filed his claim in December 2007, i.e., restless legs syndrome and mild bilateral tibial neuropathy, should be clearly reported. The examiner is informed that it is not enough merely to conclude the Veteran does not have these claimed conditions, even if not diagnosed during this current or prior evaluation. He only instead needs to show he has had this claimed condition at some point since the filing of his claim or contemporaneous thereto, even if now resolved. If the examiner concludes that a current lower left leg disability is not present despite the medical evidence of record demonstrating the various diagnoses of lower left leg disabilities since or contemporaneous to the filing of this claim, he/she is asked to provide an explanation for this conclusion, including a discussion of the lower left leg diagnoses made during the period of this appeal and the Veteran's statements. 2. Then, re-adjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of the claim. 38 C.F.R. § 3.655 (2017). 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. §§ 5109B, 7112 (2012). _________________________________________________ JOHN Z. JONES 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).