Citation Nr: 1334403 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-37 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a lower back disability. 2. Entitlement to service connection for a left leg disability, to include as secondary to a lower back disability. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1978 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen the claims of entitlement to service connection for lower back and left leg disorders, and denied entitlement to service connection for PTSD. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Albuquerque, New Mexico. This case was previously before the Board in January 2013, at which time it reopened the claims of entitlement to service connection for a lower back and left leg disabilities and remanded all claims on appeal for additional development. The case is again before the Board for appellate review. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that it contains medical records and a September 2013 Appellate Brief relevant to the issues on appeal. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, 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. FINDINGS OF FACT 1. The Veteran failed to report for a scheduled VA examination in April 2013 pertaining to his reopened claim of entitlement to service connection for a lower back disability, and he has not shown good cause for that failure to report. 2. The Veteran failed to report for a scheduled VA examination in April 2013 pertaining to his reopened claim of entitlement to service connection for a left leg disability, to include as secondary to a lower back disability, and he has not shown good cause for that failure to report. CONCLUSIONS OF LAW 1. The reopened claim of entitlement to service connection for a lower back disability must be denied due to the Veteran's failure to report for a scheduled VA examination. 38 C.F.R. § 3.655 (2013). 2. The reopened claim of entitlement to service connection for a left leg disability, to include as secondary to a lower back disability, must be denied due to the Veteran's failure to report for a scheduled VA examination. 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and implemented in part at 38 C.F.R § 3.159 (2013), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duties to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, further discussion regarding VA's duties pursuant to the Veterans Claims Assistance Act is not required, and any error pertaining to the duties to notify and assist is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran is claiming entitlement to service connection for a lower back disability, and a left leg disability as secondary to the lower back disability, due to injuries incurred in a fall during active service in 1980. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of a continuity of symptomatology from the time of service until the present is required where the chronicity of a disorder manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Historically, the Veteran was denied entitlement to service connection for a left leg injury in an October 1997 rating decision. In April 1998, the Veteran again submitted a claim of entitlement to service connection for a left leg condition as well a claim for a lower back condition. In an April 1998 rating decision, VA declined to reopen the claim of entitlement to service connection for a left leg disorder, and denied entitlement to service connection for a lower back disorder. Although notified of the denial, the Veteran did not initiate an appeal of the April 1998 rating decision, and the decision is final. 38 U.S.C.A. § 7105 (West 2002). In January 2013, the Board found that evidence submitted since the April 1998 rating decision was new and material, and reopened the claims of entitlement to a lower back disability and a left leg disability, to include as secondary to the lower back disability. The Board further found, however, that additional development was required before the claims could be adjudicated on the merits. Hence, the Board remanded the claims for a VA examination. The remand instructed the Veteran that under 38 C.F.R. § 3.655, a failure to report to a scheduled VA examination may result in denial of the claims. In January 2013, the AMC sent the Veteran correspondence requesting additional evidence on the claim and advising the Veteran that he may be scheduled for a VA examination. This letter was returned as undeliverable. In March 2013, this letter was also sent to the New Mexico VA Health Care System in Albuquerque, New Mexico, as the AMC had received notice that the Veteran had recently been hospitalized there, but this letter was also returned as undeliverable. The AMC sought clarification of the Veteran's current address, but was unable to contact him through mail or telephone. In June 2013, the AMC issued a Failure to Prosecute memorandum indicating that all search avenues had been exhausted to find the Veteran and that VA had fulfilled its notification obligations. In April 2013, the AMC requested that the New Mexico VA Health Care System schedule the Veteran for an examination pertaining to back conditions and the knee and lower leg. The Veteran failed to appear for the examination. While VA has a duty to notify and assist the appellant in the development of his claims, that duty is not limitless. In the normal course of events, it is his burden to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). In this case, the AMC fulfilled their obligation to attempt to find and notify the Veteran regarding the scheduling of his VA examination, substantially complying with the prior remand directives and all duties to notify and assist. See Stegall v. West, 11 Vet. App. 268 (1998). The AMC issued a supplemental statement of the case in June 2013, which informed the Veteran that failure to attend his scheduled VA examination had resulted in the continued denial of his claims for service connection for a lower back disability and a left leg disability. Regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination, and a claimant, without good cause (i.e., the illness or hospitalization of the claimant and death of an immediate family member), fails to report for such examination or re-examination, action shall be taken in accordance 38 C.F.R. § 3.655 (b) or (c) as appropriate. 38 C.F.R. § 3.655(a). When the missed examination is scheduled in conjunction with a reopened claim, the claim shall be denied. 38 C.F.R. § 3.655(b). Evidence of record shows that the Veteran did not report for a necessary VA examination. He has neither asserted nor demonstrated good cause for his failure to report for the scheduled VA examination, nor has he contacted VA indicating a willingness to reschedule or attend such an examination. The failure of the Veteran to notify VA of his current address, therefore hampering attempts to notify the Veteran regarding the status of his claim and the scheduling of his VA examination is not "good cause." 38 C.F.R. § 3.655. The "duty to assist is not always a one-way street. If he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, a physical examination was essential to the adjudication of his claim. The reopened claims must be denied because the Veteran failed to report for his VA examination in April 2013 without showing good cause for the failure to report. 38 C.F.R. § 3.655(b); see also Kyhn v. Shinseki, 23 Vet. App. 335, 342 (2010) (acknowledging that 38 C.F.R. § 3.655(b) compelled the Board to deny the appellant's claim to reopen for failure to report for his scheduled examination). ORDER Entitlement to service connection for a lower back disability is denied. Entitlement to service connection for a left leg disability, to include as secondary to a lower back disability, is denied. REMAND The Veteran is also claiming entitlement to service connection for an acquired psychiatric disorder, to include PTSD. This issue was previously remanded in January 2013 in order to afford the Veteran an additional VA psychiatric examination. Although the Veteran failed to appear for his scheduled April 2013 VA psychiatric examination without good cause, and therefore the claim may be evaluated based on the evidence of record, an addendum opinion to the September 2012 VA psychiatric examination is needed in order to fairly adjudicate the claim. See 38 C.F.R. § 3.655. The Veteran's records show a long history of mental health issues and substance abuse problems. The Veteran's enlistment examination does not mention any mental health or substance abuse problems, although a March 1978 questionnaire indicates that the Veteran had been previously arrested on a number of occasions, including for burglary and possession of drugs and alcohol. The Veteran's service treatment records show a pattern of alcohol-related incidents and possible substance addiction. Within the appellant's Social Security records is a July 1993 evaluation which indicates that he "essentially has been homeless" since approximately the time of his discharge from active duty service. At that time the Veteran was diagnosed with alcohol dependence, psychoactive substance abuse, and organic hallucinosis secondary to alcohol and other psychoactive substance abuse. In the VA treatment records, the Veteran is noted to report a history of mental health issues from a young age, although no contemporary evidence regarding these problems is in the record, and the appellant himself appears unclear on what possible diagnoses he was given in his childhood. But the Veteran also wrote in an October 2006 statement to VA that he had no problems with depression, PTSD, or anxiety prior to enlistment. The Veteran's VA treatment records show that since 2005 he has been repeatedly treated for a variety of mental health disorders, including bipolar disorder, PTSD, schizoaffective disorder, anxiety, attention deficit hyperactivity disorder (ADHD), alcohol dependence, and polysubstance abuse. The Veteran underwent VA psychiatric examination in September 2012 and was diagnosed with schizoaffective disorder, bipolar type, and polysubstance dependence. The examiner noted that the Veteran did not meet the requirements for a diagnosis of PTSD. The examiner opined that the Veteran's psychiatric conditions pre-existed the Veteran's military service and that there was "no evidence to suggest that his mental health was aggravated beyond its natural progression by any occurrence in military service." The examiner did not discuss evidence showing that the Veteran's psychiatric disorder clearly and unmistakably pre-existed his service or what specifically that psychiatric disorder was. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be considered adequate, the medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124. The September 2012 VA examination report is inadequate to decide the current claim, as it fails to address whether there is evidence indicating that it is clearly and unmistakably evident that the Veteran's psychiatric disorders pre-existed his service entry and that those disorders clearly and unmistakably underwent no aggravation as a result of the Veteran's period of active duty service. The controlling statute provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). To rebut the presumption of soundness, the evidence must clearly and unmistakably show that the disorder at issue pre-existed entry into service and that the disorder did not undergo aggravation in or as a result of service. Once it is determined that a disorder pre-existed entry into service, the burden of proof falls on VA to demonstrate that the established pre-existing condition of a Veteran was not aggravated during service. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). As these legal standards have not been properly addressed in the September 2012 VA examination report, an addendum medical opinion is necessary to resolve the claim on appeal. Additionally, the January 2013 remand instructed that a separate request be made for the Veteran's mental health records during service, as the Veteran has indicated that he experienced psychiatric problems during service, and mental health records are occasionally filed separately from outpatient/dental service treatment records. It does not appear that a separate request for the Veteran's mental health service treatment records has yet been made. As such, the RO/AMC must attempt to obtain these records on remand and associate them with the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Compliance with Board remands is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the appropriate source any outstanding mental health service treatment records pertaining to the Veteran. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Once the above development has been completed, return the claims file to the examiner who conducted the September 2012 VA psychiatric examination and request that he prepare an addendum to the examination report. If the examiner who conducted the September 2012 VA examination is not available, forward the record to a similarly situated psychiatrist for an addendum opinion. The examiner should then provide an opinion, consistent with sound medical judgment, as to the following: (i) For each of the Veteran's currently diagnosed psychiatric disorders, including schizoaffective disorder, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that any of these psychiatric disabilities had their onset during or are otherwise related to active duty service? (ii) For each of the Veteran's currently diagnosed psychiatric disorders, including schizoaffective disorder, does the evidence of record clearly and unmistakably show that the disorder existed prior to the Veteran's entrance onto active duty? If so, what evidence supports that conclusion? (iii) With respect to any such disorder that the examiner finds existed prior to the Veteran's entrance onto active duty, is there clear and unmistakable evidence that the psychiatric disorder did not undergo an increase in the underlying pathology during or as a result of his period of active service? Please discuss the evidence used to support this conclusion. The claims files, a copy of this remand, and access to Virtual VA must be provided to the examiner. The examiner must document his/her review of the claims file and Virtual VA. The examiner must provide both clear conclusions and a reasoned medical explanation supporting his/her conclusion. In rendering the opinion, the examiner should include discussion of the Veteran's documented medical history and assertions, including all previous psychiatric diagnoses, as well as the appellant's lay statements regarding the onset of his symptoms and continuity of symptomatology. If the examiner opines that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 3. The RO/AMC should review the medical opinion to ensure that it is in complete compliance with the directives of this remand. If any part of the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. Thereafter, the RO/AMC should readjudicate the claim. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). 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. 2013). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs