Citation Nr: 1014454 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 95-39 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a disability of the cervical spine. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. 3. Entitlement to an initial evaluation in excess of 20 percent for low back strain. 4. Entitlement to an initial compensable disability evaluation for osteomyelitis of the lumbar spine with septic arthritis. 5. Entitlement to an initial compensable disability evaluation for the residuals of fracture of the left (minor) ring finger. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to September 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of June 1995 and September 1997 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In correspondence of August 2006, the Veteran indicated that he wished to withdraw from consideration the issues of service connection for anemia and a chronic lung disorder. Accordingly, those issues are no longer before the Board. This case was previously before the Board in March 2001 and November 2007, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. Regrettably, this appeal is again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND At the time of the aforementioned remand in November 2007, it was requested that the Veteran be scheduled for VA examinations in order to more accurately determine the exact nature and etiology of his claimed psychiatric disability, and the current severity of his service-connected residuals of fracture of the left (minor) ring finger. Pertinent evidence of record is to the effect that the Veteran was, in fact, scheduled for those examinations in late June 2009. However, he failed to report for either examination. Accordingly, the Veteran was rescheduled for the aforementioned VA examinations in mid July 2009. However, he once again failed to report for either examination. Significantly, on both occasions, the notice to report for the examinations in question was sent to what was thought to be the Veteran's current address at [redacted], [redacted]. Moreover, a September 2009 Supplemental Statement of the Case (SSOC) was sent to that very same address. However, there has recently been received from the Veteran's accredited representative information to the effect that the address at [redacted] [redacted] is not correct, and that the Veteran's current address of record is, rather, [redacted], [redacted]. (It is also noted that prior to January 2008 the Veteran's address was listed as [redacted], [redacted].) Under the circumstances, the Veteran must be furnished a copy of the September 2009 SSOC, and again be given the opportunity to report for the requested VA examinations prior to a final adjudication of his claims. The Board acknowledges that the Veteran has an obligation to change/update his address with VA. The United States Court of Appeals for Veterans Claims (Court) has held that VA's duty to assist the Veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of Veterans to cooperate with VA. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Because it is unclear if VA notified the Veteran of the VA examinations and SSOC at his last known address of record the presumption of regularity of government process has not attached. Further, as noted above, another current address has been provided. See generally Ashley v. Derwinski, 2 Vet. App. 62 (1992). At this time, the Veteran is advised of the importance of reporting to the scheduled examinations and of the possible adverse consequences, to include denial of his claims, of failing to so report. See 38 C.F.R. § 3.655 (2009). Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. The Veteran and his representative should be furnished a copy of the September 2009 Supplemental Statement of the Case which was previously sent to the address at [redacted], and which the Veteran presumably did not receive. Significantly, the Veteran's copy of that Supplemental Statement of the Case should be sent to his most recent address of record that is, [redacted] [redacted] [redacted]. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to October 2007, the date of the most recent evidence of record, should then be obtained and incorporated in the Veteran's claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran should then be afforded VA psychiatric and orthopedic examinations in order to more accurately determine the exact nature and etiology of his claimed psychiatric disability, and the current severity of his service- connected residuals of fracture of the left (minor) ring finger. Notice of the scheduling of those examinations must be sent to the Veteran's most recent address of record, that is, [redacted] [redacted]. The RO/AMC is advised that the Veteran must be given adequate notice of the date and place of any requested examination(s), and a copy of all such notifications must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination or examinations without good cause may have an adverse effect on his claims. As regards the requested examinations, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. Following completion of the psychiatric examination, the examiner should specifically comment as to whether the Veteran's current psychiatric disability as likely as not had its origin during his period of active military service. Should it be determined that the Veteran's current psychiatric disability did not, in fact, have its origin during his period of active military service, an additional opinion is requested as to whether the Veteran's current psychiatric disability is as likely as not proximately due to, the result of, or aggravated by his service-connected lumbar spine, or other service-connected disabilities. Following completion of the orthopedic examination, the examiner should specifically comment regarding the severity of the Veteran's service- connected residuals of fracture of the left (minor) ring finger, to include any and all limitation of motion, as well as any functional loss associated with pain, weakened movement, excess fatigability, incoordination, swelling, and deformity or atrophy of disuse. The examiner should also discuss factors associated with disability, such as objective indications of pain or pressure on manipulation. In addition, the examiner should inquire as to whether the Veteran experiences flare-ups associated with his service-connected residuals of fracture of the left ring finger. To the extent possible, any additional functional loss or limitation of motion attributable to such flare-ups should be described. All of the aforementioned information and opinions, when obtained, should be made a part of the Veteran's claims folder. Moreover, a complete rationale for any opinion offered must be provided. The claims folder and a separate copy of this REMAND, as well as a copy of the previous November 2007 REMAND, must be made available to and reviewed by the examiners prior to completion of their examinations. In addition, a notation to the effect that this record review has taken place must be included in the examination reports. 4. The RO/AMC should then readjudicate the Veteran's claims for service connection for a disability of the cervical spine and an acquired psychiatric disorder (to include posttraumatic stress disorder), as well as his claims for increased ratings for service-connected low back strain, osteomyelitis of the lumbar spine with septic arthritis, and residuals of fracture of the left (minor) ring finger. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in September 2009. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ C. CRAWFORD 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).