Citation Nr: 1032231 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 06-06 981A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected human immunodeficiency virus (HIV) with anxiety and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow, Counsel INTRODUCTION The Veteran served on active duty from November 1997 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, established service connection for HIV with anxiety and depression, and assigned thereto an initial rating of 10 percent, effective December 10, 2004. The Veteran appealed, contending that a higher initial rating is warranted. He did not disagree with the effective date assigned for the establishment of service connection. The RO in Waco, Texas, currently has jurisdiction over the Veteran's VA claims folder. The Veteran provided testimony at a hearing before the undersigned Acting Veterans Law Judge in September 2008. A transcript of this hearing has been associated with the Veteran's VA claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately the Board finds it necessary to again remand the Veteran's claim for an increased rating for his service-connected HIV with anxiety and depression for additional development. The Board previously remanded the Veteran's claim in February 2009. The Board finds that remand is necessary to afford the Veteran with another opportunity to attend a VA mental disorders examination. Pursuant to the Board's February 2009 remand, the RO scheduled the Veteran for two VA examinations in September and October 2009 for which he failed to appear. The prior remand instruction specifically stated that, in the event the Veteran does not report, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. Unfortunately, copies of the examination notices have not been associated with the claims file; nor is there anything else in the claims file indicating that the VA Medical Center sent the notices to the last known address. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Veteran failed to appear for his last scheduled VA examinations, he is hereby advised that it is incumbent upon him to submit to a VA examination if he is applying for VA compensation benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). If he fails to report for a scheduled examination, without good cause, his claim will be decided based on the evidence of record, which may be insufficient to render a favorable decision. 38 C.F.R. § 3.655(a) and (b). Furthermore, the Board notes that the record indicates that there is likely outstanding VA treatment records that have not been associated with the file. The Veteran has indicated that he receives treatment at the VA medical facility in Austin, Texas, for both his HIV and psychiatric disorders. Prior VA treatment records show that he is seen regularly for his psychiatric problems and also at least yearly for his HIV. It has been almost two years since the last treatment record was associated with the file (September 2008). VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, upon remand, VA treatment records from October 2008 to the present should be obtained, both outpatient and inpatient. The Board also notes that the Veteran has alleged that he should either get a separate rating for his psychiatric disorders (see Notice of Disagreement) or that he should get a higher rating for his service-connected HIV with anxiety and depression because of the severity of his psychiatric disorders (see VA Form 9). It is necessary to at least obtain a medical opinion as to whether the Veteran's anxiety and depressive disorders are related to his HIV or are separate and distinct therefrom but related to service. It would also be helpful to know if any of the Veteran's symptoms are related to any nonservice-connected psychiatric disorder (including bipolar disorder or a personality disorder). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records, both outpatient and inpatient, from the Central Texas Veterans Health Care System from October 2008 to the present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 2. After any additional evidence has been obtained, the Veteran should be scheduled for a VA mental disorders examination. A complete rationale for any opinions expressed must be given. The examiner should provide a diagnosis of each psychiatric disorder found and set forth in the report an accurate and fully descriptive assessment of all psychiatric symptoms. The examiner should also identify any Axis II diagnoses after conducting any necessary tests. If multiple disorders (Axis I and/or Axis II) are identified, the examiner should indicate what symptoms are the result of each disorder identified, to the extent possible. If the examiner is unable to sort out the symptoms among the various diagnoses, he/she should so indicate in the report providing a rationale as to why. The examiner should also provide an opinion whether each Axis I disorder identified is related to (either caused or aggravated by) the Veteran's service-connected HIV or whether it is due to another etiology. If a disorder is found to not be related to the Veteran's HIV, the examiner should provide an opinion as to whether it is at least as likely as not that such disorder is related to the Veteran's military service. If the Veteran fails to report for the examination, the examiner is requested to provide the opinion requested in the preceding paragraph after conducting a full review of the Veteran's claims file. Specifically, the examiner is asked to address the Veteran's contention that his anxiety and depression are separate and distinct from his HIV. If the examiner is not able to provide the requested opinion without resort to mere speculation, he/she should so state and provide a rationale as to why. 3. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 Supp. 2009). _________________________________________________ WILLIAM YATES Acting 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).