Citation Nr: 1749094	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-00 396	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for residuals of a right shoulder injury.

2. Entitlement to service connection for residuals of a right elbow injury.

3. Entitlement to service connection for a disability manifested by rectal bleeding.

4. Entitlement to a compensable disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1978 until October 1982, September 2001 until September 2002, and from October 2004 until June 2005.

These matters come to the Board of Veterans' Appeal (Board) on appeal from an August 2010 by Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in April 2016. A transcript of the hearing is of record.

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


REMAND

After a review of the claims folder, the Board finds that a remand is necessary. 

In July 2016, the Board remanded the issues on appeal for further development. Specifically, the Board instructed the RO to schedule VA medical examinations for the issues on appeal. 

In an October 17, 2016 VA 21-2507a, Request for Physical Examination, VA scheduled the Veteran for examinations regarding the Veteran's claims on appeal. In an October 25, 2016 Compensation and Pension Exam Inquiry, VA rescheduled the pending examinations. 

Subsequently, in November 2016 VA cancelled the Veteran's examination request noting the Veteran's failure to report. Consequently, the RO issued a supplemental statement of the case (SSOC), continuing its denial of the claims on appeal; in doing so, noting the Veteran's failure to report to his scheduled VA examination. 

In an April 2017 letter, the Veteran requested VA reschedule the previous examinations for the claims on appeal. In the letter the Veteran explained that he was unable to attain the previous scheduled examinations due to him being deployed to a different state in support of firefighting efforts. The Veteran continued to explain that he had attempted to reschedule the examinations by telephone with no success. Given the Veteran's reason for his failure to attend the scheduled examinations and his attempt to reschedule, the Board finds that there exists a good cause regarding the Veteran's failure to report to the November 2016 examination. See Fluker v. Brown, 5. Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993). Thus, the Veteran must be afforded a new VA medical examination. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.655 (2016).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination regarding the Veteran's service connection claims for a right elbow and right shoulder disorder. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. 

The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any right elbow and/or shoulder disorder found on examination or in the medical record at least as likely as not (i.e., fifty percent or greater probability) had its onset in service, including between September 2001 and September 2002, or is at least in part related to the Veteran's active military service to include the right shoulder disorder (bicipital tendonitis) diagnosed in March 2002 during active military service.

The examiner should provide an explanation for all conclusions reached. As part of his/her opinion, the examiner is asked to address the Veteran's lay statements to include any statements of recurrent or continuous symptoms of a right elbow and/or right shoulder disorder since active military service.

2. Schedule the Veteran for a VA examination regarding the Veteran's service connection claim for a disability manifested by rectal bleeding. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any disability manifested by rectal bleeding or hemorrhoids found on examination or in the record at least as likely as not had its onset in service, including between October 2004 and June 2005,
 or is at least in part related to the Veteran's active military service to include the diagnosis of small hemorrhoid in May 2005.

The examiner should provide an explanation for all conclusions reached. As part of his/her opinion, the examiner is asked to address the Veteran's lay statements of recurrent hemorrhoids from active military service to the present.

3. Schedule the Veteran for a VA audiological examination to evaluate the current severity of his service connected bilateral hearing loss. All indicated tests and studies should be performed, including an audiogram and Maryland CNC speech discrimination, and the examiner must provide an explanation for all opinions expressed. To this end, the examiner must discuss how the Veteran's hearing loss affects his employment and activities of daily living.

4. Upon completion of the foregoing, readjudicate the Veteran's claims on appeal based on a review of the entire evidentiary record. If any of the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order.

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).




_________________________________________________
M. H. HAWLEY
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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