Citation Nr: 1736595	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  16-06 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1. Entitlement to service connection for a neck condition with degenerative disc disease.

2. Entitlement to service connection for headaches.



REPRESENTATION

Veteran represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

S. Freeman, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1979 to February 1980, from May 1981 to May 1984, and from July 1984 to July 1988.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the Veteran's claims of entitlement to service connection for a neck condition with degenerative disc disease, and service connection for headaches, as well as other claims that are not before the Board at this time.  He perfected a timely appeal to that decision.

The Board remanded the issues on appeal in November 2016 and requested that the RO obtain updated treatment records pertaining to the Veteran's neck condition and headaches, and afford the Veteran a VA orthopedic examination to determine the etiology of his claimed cervical spine disorder.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In the November 2016 remand, the Board directed the AOJ to provide the Veteran with VA examination to determine the etiology of his claimed cervical spine disorder and headaches.  The AOJ accordingly scheduled the Veteran for a VA examination on November 28, 2016.  However, the Veteran did not appear for the examination.  Subsequently, the AOJ scheduled another examination on December 5, 2016; however, the Veteran appeared late for that examination, and as such no examination was conducted.

In correspondence received in December 2016, the Veteran's representative proffered that the Veteran did not show up for the November 28, 2016 examination because he works for Fed Ex and it was peak season because of the holidays. Likewise, the Veteran's representative stated that the December 5, 2016 examination was not conducted because the Veteran showed up at the appointment at 1:30 p.m., believing his appointment was at 2:00 p.m.  However, upon his arrival he was informed that the examination was actually scheduled for 10:00 a.m.  He further indicated that the Veteran is willing to reschedule the examination.

Under 38 C.F.R. § 3.655, if a Veteran does not appear at a scheduled VA examination that is required to adjudicate an original claim, without good cause, the claim shall be rated based on the evidence of record.  However, in light of the Veteran's assurances that he is willing to reschedule the VA examination, and given the importance of having a thorough and contemporaneous medical examination in evaluating the current nature and severity of the Veteran's claimed neck condition and headaches, the Board finds good cause has been shown for failure to report to the VA examination, and that the Veteran should be afforded the opportunity to attend another VA examination.

Accordingly, the case is REMANDED for the following action:

Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.

1. The Veteran should be afforded a VA orthopedic examination to determine the etiology of his claimed cervical spine disorder.  The examiner must review the claims file in conjunction with the examination.  The examiner is asked to identify any cervical spine disorder that has been present at any time during the appeal period.  For each diagnosis identified, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the disorder began in or is otherwise related to his military service.  The examiner must support any opinion rendered with a complete explanation which includes discussion of the SSA-reported work injury as well as the complaints of pain during service.

2. The Veteran should be afforded a VA orthopedic examination to determine the etiology of his headache disability.  The examiner must review the claims file in conjunction with the examination.  The examiner must discuss each of the following:

(a) Provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current chronic headaches began during the Veteran's active service.

(b) Provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current chronic headaches have been caused by a current cervical spine disability.

(c) Provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current chronic headaches are chronically worsened by a current cervical spine disability.

The examiner must support each opinion with a rationale.

3. After completion of the above, review the expanded record.  If any benefit sought remains denied, then issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  A reasonable period should be allowed for response before the appeal is returned to the Board.

The appellant has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
CAROLINE B. FLEMING
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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