Citation Nr: 1008902 Decision Date: 03/09/10 Archive Date: 03/17/10 DOCKET NO. 91-11 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating higher than 50 percent for schizophrenia. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to February 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. When this case was most recently before the Board in November 2006, the Board denied the Veteran's claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision issued in February 2009, the Court vacated the November 2006 Board decision and remanded the case to the Board for additional action. REMAND In its November 2006 decision, the Board determined that the Veteran was not entitled to a higher rating for his psychiatric disability or a TDIU because the claims could not be established based upon the evidence of record, and as the Veteran had repeatedly failed to report for VA examination without good cause, a denial of the claims was in order pursuant to 38 C.F.R. § 3.655. The Court observed that the Board failed to provide adequate reasons and bases for its determination that the Veteran presented no good cause for failing to report for examinations scheduled in connection with his claims. It noted the argument of the Veteran's attorney that neither he nor the Veteran received notice of the most recent examination, and that the Board neither articulated why good cause had not been shown nor pointed to anything in the record that demonstrated lack of good cause. The Court thus ordered remand of the issues. In his February 2010 argument, appellant's attorney argued that the case be remanded to the RO for the provision of a medical examination. The attorney indicated that both he and appellant should be notified as to the scheduling of the examination. He asserted that appellant is ready and willing to report for such examination in connection with his claims. Under the circumstances, the Board finds this request reasonable. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The Veteran should be scheduled for a VA examination to determine the current nature and extent of impairment from his service-connected schizophrenia. The claims folders must be made available to and be reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that all information required for rating purposes is provided by the examiner. If the Veteran is found to have any acquired mental disorder other than schizophrenia, the examiner should state whether the disorder represents a progression of the previously diagnosed schizophrenia, or development of a new and separate condition. If the Veteran is found to have a new and separate mental disorder, the examiner should distinguish the manifestations of the service-connected disability from those of the non service-connected disability. In addition, the examiner should provide a global assessment of functioning score solely based on the service-connected disability. The examiner should also provide an opinion as to whether the service-connected psychiatric disability is sufficient by itself or in combination with the service-connected schistosomiasis to render the Veteran unemployable. The rationale for all opinions expressed should also be provided. Both the Veteran and his attorney should be sent notice of the date, place and time of the scheduled examination. Also, the Veteran and his attorney should be advised of the provisions of 38 C.F.R. § 3.655, concerning the consequences of his failure to report for an examination without good cause. If the Veteran fails to report for an examination, a copy of the notice sent to him and his attorney must be associated with the claims folders. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3. Then, the RO should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his attorney should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 Supp. 2009). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).