Citation Nr: 1326804	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  10-05 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1. Entitlement to service connection for a left hand, wrist, forearm disability, to include carpal tunnel syndrome.

2. Entitlement to an evaluation in excess of 10 percent for scalenus anticus syndrome of the right neck with secondary discomfort to the right shoulder, wrist, hand and forearms.

3. Entitlement to an evaluation greater than 30 percent for dysthymic disorder, generalized anxiety disorder, and adjustment disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1996 to September 2002.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2008 and January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut.

A review of the Veterans Benefits Management System and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of an increased rating for dysthymic disorder, generalized anxiety disorder, and adjustment disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran failed, without good cause, to report for scheduled VA examinations in conjunction with claims for increase or other original claim.


CONCLUSIONS OF LAW

1.  Entitlement to service connection for a left hand, wrist, and forearm condition, to include carpal tunnel syndrome is denied on the basis of failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

2.  Entitlement to an increased rating for scalenus anticus syndrome of the right neck with secondary discomfort to the right shoulder, wrist, hand and forearms is denied on the basis of failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The record reflects that VA provided the Veteran with the notice required under VCAA by letters dated in May 2008 and July 2008.

Based on the foregoing, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  In connection with the current appeal, available service treatment records, VA treatment records, and private treatment records have been obtained.

The Board further observes that the need to afford the Veteran a VA examination to determine the nature and extent of his left upper extremity disorders and scalenus anticus syndrome.  Thereafter, the Veteran was notified of the requested examination in May 2008.

While the Veteran was afforded an opportunity to report for VA examinations which have been offered pursuant to VA's duty to assist, his failure to attend the examinations has been well-documented in the record and he has not provided any reason for his absence. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Given the RO's efforts in attempting to arrange for examinations, it would be unreasonable to place a burden upon VA to turn up heaven and earth in an attempt to secure further response from the claimant. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993).

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Failure to Report for VA Examination

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012).  VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012).

In this case, the claims on appeal are not the original claim for compensation as contemplated by the operative VA regulations. 38 C.F.R. § 3.160(b) (2012).  Rather, the Veteran's original claim for compensation was received by VA in July 2002.  He submitted a new claim for an increased rating of his scalenus anticus syndrome and a new claim of service connection for left upper extremity disorders in April 2008.  

In a letter dated on May 2, 2008, the RO informed the Veteran that it he would be scheduled for an examination in connection with his claims.  The letter also stated that the claims file would be returned to the RO without action if he failed to report to the examination.  The Veteran failed to report to the examinations without good cause.

There is nothing in the claims file to suggest that the Veteran did not receive notification of the examination.  Moreover, he has not contended that he did not receive notification from VA.  Therefore, the Board finds no evidence that the Veteran did not receive notice of the examination and that the presumption of regularity of the administrative process has not been rebutted by clear and convincing evidence. See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (providing that the presumption of regularity applies to examinations).

The Veteran was also notified that failure to report to the scheduled VA exams would result in the denial of his claims July 2010 Statement of the Case (SSOC), and he was provided the opportunity to respond before the case was returned to the Board.  To date, he has not submitted any response.  Therefore, the Board also concludes that the Veteran has not shown good cause for his failure to report for the examination. See 38 C.F.R. § 3.655.  A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C.A. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000).

Lastly, the Board has considered all testimony present by the Veteran and finds such testimony to have been of inadequate detail and does not provide a basis on which to evaluate the claims.

As the Veteran failed to report for an examination scheduled for his claims of service connection for left hand, wrist, forearm condition, to include carpal tunnel and an increased rating for scalenus anticus syndrome and he has not shown good cause for failing to appear, his claims must be denied.

The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claims for an increased evaluation for scalenus anticus syndrome and service connection for left hand, wrist, forearm condition, to include carpal tunnel syndrome, and the claims must be denied pursuant to the operative regulation. 38 C.F.R. § 3.655(b) (2012).


ORDER

Entitlement to service connection for a left hand, wrist, and forearm condition, to include carpal tunnel syndrome is denied.

Entitlement to an evaluation in excess of 10 percent for scalenus anticus syndrome of the right neck with secondary discomfort to the right shoulder, wrist, hand and forearm is denied.





REMAND

The Veteran contends that he is entitled to an evaluation in excess of 30 percent for his psychiatric disorders.  

In March 2010 correspondence, the Veteran expressed the view that the information being utilized to rate the severity of his service-connected psychiatric disability was not accurate.  He described experiencing difficulty maintaining eye contact in social situations and impaired memory.  He discussed symptoms of disturbances of mood and motivation and indicated that he has panic attacks more than once a week.
It appears that the Veteran's symptoms have worsened since his most recent examination.

The Board additionally notes that it has been well over five years since the Veteran has had his most recent VA psychiatric examination in June 2008.  That examiner noted that it was "unfortunate" that the Veteran's claims file was not available for review given the Veteran's history of service connection and treatment.

In light of the Veteran's assertions, the Board finds that additional development is warranted to determine the current level of disability due to the Veteran's service-connected psychiatric disabilities.  As such, VA is required to afford the Veteran a VA examination to assess the current nature, extent, severity and manifestations of this service-connected disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Prior to scheduling any examination, the RO or the AMC should obtain and associate with the claims file all outstanding treatment records pertinent to the issues on appeal.

Accordingly, the case is REMANDED for the following action:

1.  Undertake the appropriate development to obtain a copy of any outstanding records pertaining to treatment of the psychological disabilities during the appeal period.

2.  When the above actions have been accomplished, the Veteran should be afforded a VA psychiatric examination to determine the extent and severity of his service-connected psychiatric disabilities.  The claims folder should be made available to the examiner for review in conjunction with the examination.  

The report of examination should contain a detailed account of all manifestations of psychiatric disability found to be present.  The examiner should comment on the extent to which the Veteran's psychiatric disabilities affect the Veteran's occupational and social functioning.  A multi-axial assessment should be conducted which includes a global assessment of functioning score (GAF score) and provides an explanation of the significance of the score assigned.

3.  After completion of the above development, the Veteran's claim should be re-adjudicated.  If the determination remains less than fully favorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. 

Thereafter, if necessary, the case should be returned to the Board for appellate disposition.  

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).

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).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs