Citation Nr: 0006867 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 97-20 585A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for residuals of a left knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel REMAND The veteran had active duty from June 1960 to June 1964. The veteran, who is the appellant in this case, has submitted additional evidence in support of his claim. On March 9, 2000, the Board received additional evidence directly from the veteran. The evidence consists of private medical records showing the veteran's treatment for his left knee disability. VA regulation provides that any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, as well as any such evidence referred to the Board by the originating agency under Sec. 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant or representative or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. 38 C.F.R. § 20.1304(c) (1999). The veteran did not submit a waiver of consideration with the additional evidence he sent to the Board. Therefore the additional evidence is referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case. Additionally, it is noted that the veteran failed to report to two VA examinations, which were scheduled to evaluate his service-connected disability prior to certification of this appeal. Specifically, in May 1998, the veteran provided an address for the record with regard to his direct deposit. Notice of examination was mailed to that address, but the veteran failed to report to VA examination in September 1998. In January 1999, the RO spoke to the veteran by telephone and received a new address. Notice of examination was sent to him at the new address, and he thereafter failed to report for VA examination scheduled in February 1999. In March 1999, the veteran provided written acknowledgment of his current address, which was the same as given by him to the RO via their telephone conversation in January 1999. In a February 2000 statement, the veteran's service organization indicated that they had been unable to contact the veteran. In his latest correspondence to the Board, the veteran used a return address which was the address on record in May 1998. In that regard, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that, the burden is upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). However, the Court also stated that in the normal course of events it was the burden of the veteran to keep the VA apprised of his whereabouts, and that if he did not do so there was no burden on the VA to turn up heaven and earth to find him before finding abandonment of a previously adjudicated benefit. Id. The Court has also held that the "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In Wamhoff v. Brown, 8 Vet. App. 517 (1996), the Court found that notice of a required VA examination mailed to the veteran's sole address on file was sufficient to trigger the veteran's duty to appear for such examination, although the evidence in that case later revealed that the veteran did not in fact receive such notification because he was not residing at that address. The Court has held that claim denials based upon 38 C.F.R. § 3.655 (1999) for failure to report for a scheduled VA examination without good cause are factual matters which are subject to a "clearly erroneous" standard of review. Engelke v. Gober, 10 Vet. App. 396, 399 (1997). In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q) (1999). The above being stated, the Board, nonetheless, at this time will make one last attempt to have the veteran evaluated for rating purposes, in conjunction with this claim. In addition to providing him with all reasonable doubt regarding notice of examination, the Board notes that the veteran's last VA examination was in September 1995, close to five years ago. If the veteran fails to show for VA examination on this occasion, the Board will be constrained to determine his claim based on the evidence of record. See also 38 C.F.R. § 3.655(a)(b) (1999). Accordingly, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran should be contacted in writing at his current address of record, and informed of the date, place, and time of the VA examination scheduled in connection with his claim for an increased rating for left knee disability. The veteran should be informed that his cooperation is vitally important to a resolution of this claim, and that his failure to cooperate may have adverse consequences. See 38 C.F.R. § 3.655(b). 2. The veteran should be afforded a VA orthopedic examination to determine the current severity of his service connected left knee disability. The claims folder should be made available to the examiner for review during the course of the evaluation. The examiner is asked to note whether there is objective pain on motion and functional loss. All diagnostic test should be performed. 3. After the development requested above has been completed to the extent possible, the RO should again review the record and consider the medical records sent by the veteran to the Board in March 2000. See 38 C.F.R. § 20.1304(c) (1999). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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. Deborah W. Singleton Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).