Citation Nr: 1330705 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-33 831 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for low back strain. 2. Entitlement to a rating in excess of 10 percent for left eye disability. 3. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from April 2002 to April 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2007, July 2007 and September 2007 rating decisions issued by the RO. In his September 2007 and September 2008 Substantive Appeals, the Veteran requested a hearing before a Veterans Law Judge at the RO. The Veteran's hearing was scheduled for August 6, 2013 and he was notified accordingly. The Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In this case, the Veteran was afforded VA examinations in connection with his claims in August 2006 (spine and eye), May 2007 (eye) and June 2007 (PTSD). In his September 2007 Substantive Appeal, the Veteran asserts that the symptomatology associated with his service-connected low back strain has increased in severity since the last afforded VA examination. He complained of daily pain, stiffness, painful motion and limitation in ability to perform activities of daily living. In his September 2008 Substantive Appeal, the Veteran asserts that the symptomatology associated with his service-connected left eye disability and PTSD has increased in severity since the last afforded VA examination. With regard to his left eye disability, he complained of vision problems that specifically interfered with his ability to drive, especially at night. As to his PTSD, he complained of mood swings, anger/rage difficulty, sleep impairment and impairment in concentration and focus. Additionally, he reported an incident of domestic violence against his wife that had resulted in lost employment. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Under the circumstances, the Board finds that additional VA examination is necessary to ascertain the current severity and manifestations of the service-connected low back strain, left eye and PTSD disabilities. The Board is aware that a generated report of all examinations reflects that the Veteran was scheduled for VA examination in March 2011 to evaluate his service-connected lumbar spine, left eye and PTSD disabilities; handwritten notation indicates the Veteran was a no show for the scheduled examinations. However, there is no indication from the record that the Veteran received any type of notice of the date and time of the scheduled examinations. The Board is also aware of the May 2012 report of general information which reflects that an attempt to contact the Veteran by telephone was made to determine if examinations for his disabilities could be scheduled but that the Veteran was unable to be reached. Notwithstanding this attempt to make telephone contact with the Veteran, in light of the fact that it is unclear from this record that the Veteran ever received notice of the date and time of his scheduled VA examinations in 2011, the Board finds that the Veteran should be given another opportunity to report for VA examinations to evaluate the current severity of his low back, left eye and PTSD disabilities. The Veteran is reminded that the duty to assist is not a one-way street. He cannot passively wait for help in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). If the Veteran fails to cooperate with the VA's efforts to assist him with the factual development of his claims, no further effort will be expended to assist him in this regard and his claims will be evaluated on the evidence of record. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA spine examination to evaluate the current severity and manifestations of his low back strain. The entire claims folder must be made available to the examiner for review in conjunction with the examination. All tests and studies, to include range of motion testing. The examiner should provide an accurate and fully descriptive assessment of the Veteran's low back disability, to include indication as to whether, and to what extent, the Veteran experiences likely functional loss due to pain, weakness, excess fatigability, and/or incoordination during flare-ups or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner must provide a complete rationale for all the findings and opinions. 2. The Veteran should be scheduled for a VA eye examination to evaluate the current severity and manifestations of his left eye disability. The entire claims folder must be made available to the examiner for review. All tests and studies that the examiner deems necessary should be performed. The examiner should provide an accurate and fully descriptive assessment of the visual impairment due to the Veteran's left eye disability The examiner must provide a complete rationale for all the findings and opinions. 3. The Veteran should be scheduled for a VA examination to evaluate the current severity and manifestations of his PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's PTSD. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. The examiner must provide a complete rationale for all the findings and opinions. 4. The Veteran must be given adequate notice of the date and place of the requested examination. A copy of all notification letters (and the address where the notice was sent), sent to the Veteran from the VA medical facility scheduling his examination must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2012). 5. After completion of the above development, the Veteran's claims should be readjudicated. If the determinations remain adverse to him, he should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ H. N. SCHWARTZ 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) (2012).