Citation Nr: 21023663 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-58 206 DATE: April 21, 2021 REMANDED Entitlement to service connection for a bilateral foot disorder, to include acquired flat feet and hammer toes, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board in December 2018 for the issuance of a supplemental statement of the case (SSOC) after additional VA treatment records were associated with the claims file after the October 2016 statement of the case (SOC). The case was remanded by the Board again in August 2019 for further development. The case has since returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the claim. The Board remanded the case in August 2019 to schedule a VA examination and obtain a medical opinion. The claims file contains examination scheduling requests; however, a December 2019 record indicates that the Veteran did not appear for the scheduled VA examination. In an August 2020 SSOC, the agency of original jurisdiction (AOJ) noted that the Veteran failed to appear for his scheduled examinations. Nevertheless, the claims file does not include a letter notifying the Veteran of the date and time of the scheduled examination. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination “when entitlement to a benefit cannot be established” without the scheduled examination. 38 C.F.R. § 3.655(a), (b). In this case, however, it is unclear whether the Veteran was properly notified, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Thus, the Board finds that the Veteran should be afforded another opportunity to appear for a VA examination in connection with this claim. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a bilateral foot disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. Thereafter, the AOJ should schedule the Veteran for an examination with an appropriate clinician to determine whether the Veteran’s claimed bilateral foot disability, to include acquired flat feet and hammer toes, began in or is otherwise related to his military service, to include his reported in-service injury during Airborne training. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner must opine whether it is at least as likely as not (50 percent or great probability) that any diagnosed bilateral foot disability, to include acquired flat feet and hammer toes, began in or was otherwise caused by service. The examiner must discuss the Veteran’s statements that his foot pain began during service and his contentions regarding pain in his feet continuously since service in the context of any negative opinion. 3. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination, 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. In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the claims file. It should also be noted whether any notice that was sent was returned as undeliverable. 4. The AOJ should then review the VA examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 5. The AOJ should conduct any other development as may be indicated. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.