Citation Nr: 1317831 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 04-26 386 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected adductors myositis, left/adductors tenosynovitis. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to June 1985. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2003 rating decision in which the RO denied service connection for anxiety features, to include as secondary to adductors myositis, left/adductors tenosynovitis. The Veteran filed a notice of disagreement (NOD) in November 2003. A statement of the case (SOC) was issued in May 2004, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2004. In a June 2006 remand, the Board characterized the claim on appeal as a request to reopen a previously-denied claim, and remanded the claim to the RO, via the Appeals Management Center (AMC), in Washington, D.C., for further action. After completing further action, the AMC determined that new and material evidence to reopen the claim had been received, but denied the claim for service connection on the merits (as reflected in a January 2007 supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. In December 2007, the Board again remanded the request to reopen to the RO, via the AMC, for further action. After completing further action, the AMC continued to deny the claim (as reflected in an April 2009 SSOC), and returned this matter to the Board for further appellate consideration. In September 2010, the Board again remanded the request to reopen to the RO, via the AMC, in Washington, D.C., to ascertain whether the Veteran desired a Board hearing. In January 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In June 2011, the Board reopened the claim for service connection, then remanded the claim for service connection, on the merits, to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim (as reflected in the May 2012 SSOC), and returned this matter to the Board for further appellate consideration. In August 2012, the Board remanded the claim for service connection to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim (as reflected in the January 2013 SSOC), and returned this matter to the Board for further appellate consideration. The Board notes that, throughout much of the pendency of this appeal, the Veteran has been unrepresented. However, during the pendency of this appeal, in February 2012, the Veteran executed a VA Form 21-22, Appointment of Individual as Claimant's Representative in Favor of the Veterans of Foreign Wars of the United States. That organization has provided written argument on the Veteran's behalf. The Board recognizes the change in representation. For reasons expressed below, the claim on appeal is, again, being remanded to the RO via the AMC.. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2012, the Board remanded the claim in order for the December 2011 VA examiner to provide an addendum opinion after he considered the Veteran's complete documented medical history; the VA examiner provided an addendum medical opinion in September 2012. On remand, the RO also requested that additional VA treatment records to be obtained; VA treatment records were obtained and associated with the Veteran's claims file, specifically, in his Virtual VA claims file. In August 2011, the RO sent the Veteran a letter requesting formation and authorization to obtain any outstanding private treatment records. In March 2013 the Veteran responded with a VA 21-4142 Authorization and Consent to Release Information to the Department of Veterans Affairs, indicating a Dr. I.A.B in Aguadilla, Puerto Rico. The Board notes that the Veteran submitted additional records with that form; however, they are from San Juan Capestrano Hospital in San Juan, Puerto Rico. There is no indication that the RO either obtained or tried to obtain any private treatment records from Dr. I.A.B. in Aguadilla, Puerto Rico. Thus, on remand the RO should obtain any outstanding private treatment records following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The Board points out that, because there remain pertinent, outstanding records, the record still does not include a medical opinion based on consideration of all relevant evidence. Therefore, once the RO has obtained additional, pertinent treatment records, the Veteran's claims file should be forwarded to December 2011 examiner (who also provided the September 2012 addendum opinion) for another addendum opinion based upon full consideration of all pertinent evidence. The RO should only arrange for the Veteran to undergo examination if the December 2011 examiner (and author of the September 2012 addendum opinion ) is not available, or another examination of the Veteran is deemed warranted. The Veteran is hereby advised that, failure to report to any examination scheduled in connection with the claim for service connection for acquired psychiatric disability, without good cause, may well result in denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examinations, the RO should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the RO's last adjudication of the claim-to include treatment records dated through January 2013 (reflected in the Veteran's Virtual VA file) that have not been considered cases the RO.. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the San Juan VAMC any outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since January 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Assist the Veteran in obtaining additional evidence from Dr. I.A.B. in Aguadilla, Puerto Rico, following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time period for the Veteran's response has expired, the RO should forward the Veteran's entire claims file, to include a complete copy of this REMAND, to the December 2011 VA examiner(and author of the September 2012 addendum opinion) for another addendum opinion. The examiner should again review the claims file, to include the prior examination report and addendum opinion. The examiner should provide an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that diagnosed psychiatric disability had its onset in or is otherwise medically related to service, to particularly include the in-service complaints of nervousness. If the psychiatrist concludes that diagnosed psychiatric disability is not medically related to service, the psychiatrist should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (a) was caused, or (b) is aggravated (worsened beyond the natural progression) by the Veteran's service-connected adductors myositis, left/adductors tenosynovitis. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinion, the examiner should specifically consider and discuss the Veteran's documented medical history reflected both in- and post-service treatment records, along with the Veteran's lay assertions. If the September 2012 examiner is not available, or another examination of the Veteran is deemed warranted, arrange for the Veteran to undergo VA examination, by a psychologist or psychiatrist, to obtain opinions responsive to the questions posed above for each diagnosed psychiatric disability. Under such circumstances, the entire claims file, to include a complete copy of this REMAND must be made available to the individual designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies (to include psychological testing, if deemed warranted) should be accomplished (with all findings made available to the requesting examiner prior to the completion of his/her report), and all clinical findings should be reported in detail. The examiner should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for an acquired psychiatric disability, to include as secondary to service-connected adductors myositis, left/adductors tenosynovitis, in light of all pertinent evidence (to particularly include all that added to the record (paper and electronic files) since the RO's last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).