Citation Nr: 21024233 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-29 683 DATE: April 22, 2021 REMANDED Entitlement to service connection for a spinal cord disorder is remanded. Entitlement to service connection for a right lower extremity disorder, to include nerve damage, is remanded. Entitlement to service connection for a left lower extremity disorder, to include nerve damage, is remanded. Entitlement to service connection for a right upper extremity disorders, to include nerve damage, is remanded. Entitlement to service connection for a left upper extremity disorders, to include nerve damage, is remanded. Entitlement to a temporary total rating for a spinal cord disability due to hospital treatment or observation, is remanded. Entitlement to a temporary total rating for a spinal cord disability due to convalescence is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to April 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in November 2019. The Veteran’s claims were remanded for additional development. The case is now again before the Board for further appellate action. 1. Entitlement to service connection for a spinal cord disorder is remanded. 2. Entitlement to service connection for a right lower extremity disorder, to include nerve damage, is remanded. 3. Entitlement to service connection for a left lower extremity disorder, to include nerve damage, is remanded. 4. Entitlement to service connection for a right upper extremity disorders, to include nerve damage, is remanded. 5. Entitlement to service connection for a left upper extremity disorders, to include nerve damage, is remanded. 6. Entitlement to a temporary total rating for a spinal cord disability due to hospital treatment or observation, is remanded. 7. Entitlement to a temporary total rating for a spinal cord disability due to convalescence is remanded. In November 2019, the Board remanded the Veteran’s claims to obtain records from the Social Security Administration and to arrange for VA examinations and medical opinions. On January 13, 2020, the AOJ submitted a request for a VA examination. On January 12, 2020, the AOJ sent a notice to the Veteran advising that a request for an examination was submitted on his behalf and that he would be notified by the medical facility about his appointment date. On January 28, 2020, the Veteran submitted a VA Form 20-572, Request for Change of Address, on which the Veteran provided an updated mailing address. The following morning, on January 29, 2020, an electronic record was created to reflect that the Veteran’s VA examinations were cancelled because the Veteran “failed to RSVP.” However, there is no indication within the record that the Veteran was in fact notified either in writing or by phone of the date, time, and location 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 about the scheduled VA examinations. Here, although the January 29, 2020 notice indicates that the Veteran “failed to RSVP,” which implies that an examination was scheduled, the record is lacking documentation that the Veteran was notified of the appointment date, time, and location. Moreover, 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). Even assuming, that the Veteran was sent the appropriate notification of the date, time and location of the scheduled VA examination, the record is unclear as to whether notification was sent to the Veteran’s correct address. Notably, the examinations were cancelled one day after the VA received a request for a change of address from the Veteran. Under these circumstances, the Board is unable to presume that the Veteran was properly notified of an upcoming examination so as to permit the application of 38 C.F.R. § 3.655(b). As such, the Board finds that, in the interests of due process and fairness, the Veteran should be afforded an additional opportunity to undergo VA examinations in connection with his appeal. On remand, the AOJ should undertake appropriate measures to verify the Veteran’s current address and ensure that notice of the scheduled appointment is sent to the Veteran and the Veteran’s representative. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. The AOJ should arrange for VA examinations of the Veteran to determine the nature and likely cause of any spinal cord disability, to include the thoracolumbar spine and cervical spine. The examiner should review the claims file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all thoracolumbar and cervical spinal cord disabilities present during the appeal period (from November 2014). (b.) For each spinal cord disability diagnosed, is it at least as likely as not (50 percent or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected left knee disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 2. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.