Citation Nr: 1736667	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-31 164A	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


Entitlement to a compensable disability rating for prostate cancer from February 1, 2012.  


Appellant represented by:	Teena Petro, Agent


D. Chad Johnson, Associate Counsel


The Veteran had active service from September 1968 to May 1971.  

This matter comes to the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

This matter was previously remanded by the Board in July 2015 in order to afford the Veteran a VA examination.  As discussed below, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.  


This matter was previously remanded by the Board in July 2015 in order to afford the Veteran a VA prostate cancer examination.  As discussed herein, an additional remand is required to ensure due process and to afford the Veteran an additional opportunity to attend a VA examination.  

An August 24, 2015 Report of General Information documents that the Veteran was contacted via telephone and made aware that a VA examination would be requested regarding his appeal.  A notice letter dated the following day (August 25, 2015) indicates that the Veteran would be notified by a nearby VA medical center (VAMC) regarding the date, time, and place of the scheduled examination.  

Thereafter, the Veteran failed to appear for the scheduled VA examination, which was cancelled by VA on September 10, 2015.  The denial of the Veteran's claim, based upon his failure to appear at the scheduled VA examination, was confirmed within a December 2016 supplemental statement of the case (SSOC), and the matter was then returned to the Board. 

The Board is mindful that a subsequent January 2017 correspondence from the Veteran's representative asserts that the Veteran never received notice of the scheduled examination and, therefore, was unable to report.  Additionally, the representative pointed out that, curiously, according to the December 2016 SSOC, the examination was conducted on August 24, 2015, which is actually one day prior to the date of the notice letter which informed the Veteran that he would be scheduled for an examination by the VAMC.  

Moreover, the Board is unable to find within the record a copy of the notice letter from the VAMC to the Veteran informing him that he was scheduled for a VA examination.  Additionally, although there is no indication that mailings to the Veteran's current address of record were returned as undeliverable, the Board notes that a July 2015 VA treatment record indicates that the Veteran was participating in a program for homeless veterans.  Typically, in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process, see Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992); however, in this instance, the Board finds that in order to fully regard the Veteran's due process rights, and without a reason to question the credibility of the Veteran and his representative regarding the assertion that he failed to receive proper notice, he will be given one more opportunity to appear for a scheduled VA examination concerning his claim on appeal.  

On remand, the AOJ must schedule the Veteran for the previously requested medical examination, provide him and his representative with adequate prior notice of the examination date and location (to be sent to his last known mailing address of record), and allow him this one additional opportunity to appear for an examination.  The Veteran is hereby advised, however, that he is legally obligated to report for such medical examination.  38 C.F.R. § 3.655 (2016).  The consequences of his failure, without good cause, to appear for an examination ordered in conjunction with his original compensation claim is that his claim shall be rated on the evidence of record.  38 C.F.R. § 3.655 (b).  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the nature and current severity of his prostate cancer disability and any residuals thereof.  Properly advise the Veteran that failure to appear for any examination as requested, without good cause, could adversely affect his appeal.  38 C.F.R. § 3.655 (2016).  The AOJ must ensure that the Veteran is provided with timely notice of the date, time, and location of the scheduled medical examination and clearly document that such notice is sent to his correct last known mailing address of record.  A copy of VA's correspondence notifying the Veteran of such examination must also be associated with the claims file.  

The VA examiner is specifically requested to review the entire claims file, including this remand, and to conduct any relevant examination or testing of the Veteran, as deemed necessary by the examiner.  

Specifically, the examiner must state whether the Veteran's prostate cancer is in remission, and if so, identify the approximate date of onset of remission.  In so doing, the examiner is requested to support this determination by reference to any pertinent clinical and/or laboratory findings within the record; 

Additionally, the examiner must describe in detail the nature and extent of any residuals attributable to the Veteran's prostate cancer, including voiding and/or renal dysfunction, and support this determination by reference to any pertinent clinical and/or laboratory findings within the record.  

2.  Following the above, review the resulting VA examination report and any resulting opinion to ensure their adequacy.  If the resulting examination is inadequate, take appropriate corrective action.  

3.  Thereafter, readjudicate the Veteran's claim on appeal.  If any benefit sought on appeal remains denied, provide the Veteran and his representative with an SSOC and a reasonable opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order.  

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.A. §§ 5109B, 7112 (West 2014).

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).


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