Citation Nr: 9835788 Decision Date: 12/04/98 Archive Date: 12/15/98 DOCKET NO. 95-29 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The veteran served on active duty from October 1987 to August 1990. This case comes before the Board of Veterans’ Appeals (Board) from a rating decision of February 1995 from the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for a low back disorder. In June 1997, the Board remanded this case for further development, to include scheduling a VA examination. This case is now returned to the Board. REMAND By decision dated in June 1997, the Board remanded this matter to allow the RO to schedule a VA orthopedic examination to help determine whether service connection should be granted for a low back disorder. Pursuant to this Remand, the RO ordered an orthopedic evaluation on July 23, 1997. There is no evidence associated with the claims file indicating that the veteran received written notification of a scheduled examination. On September 3, 1997, the RO notified the veteran that he had failed to report for his scheduled examination on August 14, 1997, and that absent receipt of notification from the veteran within 30 days indicating a willingness to report for an examination, the appeal would be returned to the Board. There is no evidence that the veteran responded to this letter within 30 days of receipt. Upon review of the evidence, the Board finds that a remand is necessary in order to assure the veteran full due process in this matter. The General Counsel, in representing VA before the Court, has noted that the RO has duties. Pursuant to 38 C.F.R. § 3.655 (1998), when the claimant without good cause fails to report for examination, his claim for increased compensation will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, the VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. Reference was made the M21-1, Part IV, paragraph 28.09(b) (3). The RO must comply with all notification requirements regarding the duty to report and the failure to report for examination. In this matter, there is no evidence that the veteran actually was notified of the examination which had apparently been scheduled for August 14, 1997. Furthermore, even if the evidence had shown that the veteran received proper notification of this examination, and failed to appear, the RO’s returning of this matter to the Board, without first issuing a rating and the proper notification violated the veteran’s procedural rights under M21-1, Part IV, paragraph 28.09(b). Under paragraph 28.09 (b), When information is received that a claimant failed to report for a physical examination, refer the claims folder to the rating board for consideration. See paragraph 25.05 and Part VI, paragraph 9.10 for failure to report for a scheduled review examination. (1) If evidence is found to be adequate to grant the benefits sought, the rating board will rate the claim and send the claims file to authorization for award action. (2) If evidence is inadequate to grant the benefits sought, the rating board will prepare a "failure to report" rating. (a) For an original claim or when there are any claimed conditions that were not previously coded, the board will prepare a formal rating or, if necessary, a memorandum rating (pt. VI, ch. 4). (b) For a claim for increase or a reopened claim for disabilities previously considered in a formal rating, the board will prepare a C&C rating unless formal coded rating is otherwise necessary. (c) The rating board will return the rating decision with the claims folder to authorization for a disallowance. See Part VI, paragraphs 1.08 and 9.10. (3) Notify the claimant of the disallowance. Attach a copy of the pertinent page(s) of the rating if so desired. Indicate that VA cannot grant the claim without an examination. Provide procedural and appellate rights and ask the claimant to respond promptly if he or she is now ready to report for the examination. See paragraph 25.05 and Part VI, paragraph 9.10 for failure to report for a scheduled review examination. M21-1, Part IV, paragraph 28.09 (b). To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran should be rescheduled for a VA orthopedic examination. Notification of the time and date of this examination shall be sent to the veteran in writing, and a copy of same attached to the claims file. The entire claims folder and a copy of this Remand must be made available to and be reviewed by the examiners prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should respond to the following questions with a complete explanation: A. What is the correct diagnosis for the veteran’s current low back disorder? B. Was the low back symptomatology during service the manifestation of a transitory or chronic increase in the severity of the veteran’s back disorder? Please explain. C. If the increase was chronic, what additional manifestations does the veteran currently have as a result of the additional disability? 2. The General Counsel, in representing VA before the Court, has noted that the regional office has duties. Pursuant to 38 C.F.R. § 3.655, when the claimant without good cause fails to report for examination, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. Reference was made the M21- 1, Part IV, paragraph 28.09(b) (3). The regional office must comply with all notification requirements regarding the duty to report and the failure to report for examination. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1998) (“if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). The appellant is free to furnish additional evidence and argument while his case is in remand status. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). Following completion of this development, the RO should review the veteran’s claims. Thereafter, in accordance with the current appellate procedures, which in this case, requires the RO to reissue a rating decision with proper notification in accordance with M21-1, Part IV, paragraph 28.09(b), should the veteran fail to appear for a VA examination after receiving notification of the upcoming examination, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. CLIFFORD R. OLSON Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1997). - 2 -