Citation Nr: 1317550 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 08-32 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a permanent and total disability rating for Department of Veterans Affairs (VA) pension purposes. REPRESENTATION Appellant represented by: Juan A. Velez-Mendez, Esq. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the San Juan, Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to a permanent and total disability rating for VA pension purposes. In February 2010, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., so that the Veteran could be scheduled for a hearing before a traveling Veterans Law Judge from the Board, sitting at the RO, pursuant to the appellant's request. At the start of this claim, the Veteran had initially been represented by the Puerto Rico Public Advocate for Veterans Affairs. However, in correspondence dated June 2012, the Veteran constructively notified VA of his appointment of a private attorney, Juan A. Velez-Mendez, Esq., as his representative in the current appeal. Pursuant to the February 2010 Board remand, VA scheduled the Veteran for his requested hearing in April 2013 and he was duly notified in advance, via written correspondence, of the time, date, and location of the hearing. However, he failed to appear for the hearing and did not provide any timely notice showing good cause as to why he was unable to appear, nor a timely request for a rescheduling of the hearing. His hearing request is thus deemed to have been constructively withdrawn and no further opportunity for a Board hearing with regard to this current appeal will be provided. 38 C.F.R. §§ 20.702(d), 20.1507(b)(1) (2012). The case was thereafter returned to the Board in May 2013. For the reasons that will be discussed below, this appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to a permanent and total disability rating for VA pension purposes, pursuant to the provisions of 38 C.F.R. § 3.3(a)(3) (2012). A review of the Veteran's physical claims file and his clams file as it appears on the Virtual VA electronic database shows that the most current VA medical assessment of record addressing the degree of impairment produced by each and all of his medical disabilities was conducted in February - March 2008, over five years ago, when the claimant was provided with a series of examinations, which included a general medical examination, an orthopedic examination, a psychiatric examination, and clinical laboratory testing of his blood and urine. Since the time that this battery of examinations was conducted, no additional medical evidence has been associated with the record. As it is implicit in the Veteran's appeal that his overall medical condition has worsened in the intervening time since these last VA examinations, the Board concludes that there is a need to verify the current severity of the Veteran's disabilities and therefore a remand for the appropriate re-examination(s) is required. 38 C.F.R. § 3.327(a) (2012). The Veteran is respectfully advised that failure to report for a VA examination, without good cause, may have adverse consequences on his claim. See 38 C.F.R. § 3.655 (2012). Prior to conducting the medical re-examination(s) ordered in this remand, any additional pertinent private and/or VA treatment records since the February/March 2008 VA examination not presently associated with the Veteran's claims file should be obtained for inclusion in the evidence. In this regard, the Veteran should also be specifically asked if he is presently in receipt of Social Security Administration (SSA) disability benefits, or otherwise has a pending claim for SSA disability benefits. If he answers in the affirmative, the RO should undertake the appropriate actions to contact the SSA and request that VA be provided with copies of the medical records considered by the SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 371 (1992); Clarkson v. Brown, 4 Vet. App. 565 (1993); Baker v. Brown, 11 Vet. App. 163 (1998). Accordingly, the case is REMANDED to the RO for the following action: 1. Request the Veteran to report all sources of medical treatment received since February 2008, including VA and private, and request him to submit copies of the records relating to these treatments and/or authorize VA to obtain these records on his behalf. Ask the Veteran if he is currently in receipt of an award of SSA disability benefits. If he answers affirmatively, the RO should obtain the Veteran's authorization to obtain the medical records considered by SSA. Thereafter, undertake the appropriate actions to contact SSA and obtain copies of these records for inclusion in the evidence. 2. Arrange for the Veteran to be afforded the appropriate VA examination(s) to determine the current nature and severity of all his disabilities. The claims folder must be provided to the examiner(s) and review of pertinent documents therein should be reflected in the completed examination report(s). All necessary tests and studies should be accomplished. All clinical findings in regard to evaluating each of the Veteran's disabilities, to include psychiatric, orthopedic, and internal systemic disorders, in accordance with applicable rating criteria, should be set forth in the report(s). 3. The Veteran should be duly advised that failure to report for a VA-authorized examination, without good cause, may have adverse consequences on his claim. See 38 C.F.R. § 3.655. 4. Upon completion of the foregoing, the RO should readjudicate the Veteran's claim of entitlement to a permanent and total disability rating for pension purposes, based on a review of the entire evidentiary record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his representative with a supplemental statement of the case and the appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). By this remand, the Board intimates no opinion as to the final disposition of matter at issue. 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Michael J. Skaltsounis ActingVeterans 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) (2012).