Citation Nr: 18132337
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-06 250
DATE:	September 6, 2018
REMANDED
The issue of entitlement to an initial compensable rating for left shoulder osteoarthritis (“left shoulder disability”) is remanded.
The issue of entitlement to an initial compensable rating for chronic lumbar strain and sciatica (“low back disability”) is remanded.
The issue of entitlement to an initial rating in excess of 10 percent for metatarsalgia, right foot (“right foot disability”) is remanded.
The issue of entitlement to an initial compensable rating for hypertension is remanded.
REASONS FOR REMAND
The Veteran served on active duty from December 1989 to February 2010.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which, in pertinent part, granted entitlement to service connection for a left shoulder disability, a low back disability, a right foot disability, and hypertension.  
The Veteran filed his initial claim of entitlement to service connection for various conditions, including the issues on appeal, in September 2010.  A January 2011 report of general information shows that the Veteran called VA to report that he was living in Japan.  A January 2013 letter to the Veteran informed him that a VA contractor would be notifying him of the date, time, and place of his compensation examinations.  A March 2013 letter reflects that the Veteran did not report to his scheduled C&P examinations on March 4, 2013.  
In the March 2013 rating decision on appeal, the RO noted that the Veteran did not attend his scheduled VA examinations.  In his September 2013 notice of disagreement with the initial ratings assigned for a left shoulder disability, a low back disability, a right foot disability, and hypertension, the Veteran reported that he received the January 2013 letter informing him that his C&P examinations would be scheduled by a contractor.  He also reported that he found, through ebenefits, the company in Japan that would be scheduling his examinations.  He reported that he contacted the company and provided his phone number and email address so that he could be contacted when the examinations were scheduled, but that he never received any notice of the scheduled examinations.  The Veteran requested that he be rescheduled for C&P examinations.  
In the December 2015 statement of the case, the RO acknowledged the Veteran’s statements regarding lack of notification of the scheduled examinations; however, the RO stated that the Veteran was notified by letter dated in January 2013 “of the need for an examination” and that the examination scheduling company had the Veteran’s correct address and phone number for notification.  In the Veteran’s February 2016 substantive appeal, he again reported that he was not notified of his scheduled examinations, and he requested that he be rescheduled for examinations.  
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).  Here, however, the Veteran asserts that he did not receive notification of the examinations and maintains that he is able and willing to report for any necessary examinations.  Significantly, the record does not contain any letter or other document reflecting that the Veteran was actually notified of the scheduled examinations.  Given the assertions made by the Veteran regarding lack of notice, as well as the absence of documentation regarding the Veteran’s scheduled examinations, the Board is unable to presume that the Veteran was properly notified of the examinations so as to permit the application of 38 C.F.R. § 3.655(b).  See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013).  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.  
The Board also notes that the Veteran’s address may have recently changed.  In this regard, a November 2017 letter to the Veteran at his previous, overseas address was returned as undeliverable, and correspondence to and from the Veteran in July 2018 reflects a new, stateside address.  On remand, the AOJ should undertake appropriate measures to verify the Veteran’s current mailing address.  Thereafter, the AOJ should schedule the Veteran for VA examinations.
Lastly, the Board notes that there are no post-service treatment records associated with the claims file.  In a January 2011 statement, the Veteran reported that he received treatment for his conditions at the Yokosuka Japan Naval Hospital.  There is no indication that the RO attempted to obtain these records.  The duty to assist includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records.  38 C.F.R. § 3.159 (c)(2).  These records should be obtained on remand.  
The matters are REMANDED for the following action:
1. After ensuring that the most recent mailing address is of record, send the Veteran a letter requesting that he identify all VA and non-VA health care providers that have treated or evaluated him for the issues on appeal since March 2010.  Request that he provide sufficient information, and if necessary, authorization to enable VA to obtain any additional evidence pertinent to the claim on appeal that is not currently of record.
2. Obtain the Veteran’s records from Yokosuka Japan Naval Hospital documenting treatment for the conditions on appeal dated from March 2010 to the present.  All efforts should be made to obtain such records.  If any records cannot be obtained after efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 (e). 
3. After all available records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his service-connected left shoulder osteoarthritis.
4. After all available records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his service-connected chronic lumbar strain and sciatica.
5. After all available records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his service-connected metatarsalgia, right foot.
6. After all available records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his service-connected hypertension.
7. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the appeal, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2017).  
In the event that the Veteran does not report for any of the scheduled examinations, the notification letter scheduling the examination that was sent to the Veteran’s last known address should be associated with the electronic file.  Any notice that is returned to VA as undeliverable should also be associated with the electronic file.
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8. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim.  If the claim is denied, supply the Veteran with a supplemental statement of the case and allow an appropriate period of time for response.  Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Kipper, Associate Counsel

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