Citation Nr: 1336083 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-00 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from December 1969 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2011, the Board remanded the claim for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board remanded this claim in January 2011. A determination was made that an October 2005 general medical examination was inadequate to determine whether the Veteran is entitled to a nonservice-connected pension. Reference was made to the finding that that the Veteran's lumbar spine degenerative joint disease, perhaps with some superimposed scoliosis, made it "not possible" for the Veteran to maintain full-time employment, but that a June 2006 VA treatment report noted the Veteran's report that he had "just gotten a new job." There was also some question as the permanency of his disabilities. A VA examination was thereby ordered to assess the severity of all his disabilities, the permanence of each of these disabilities, and their impact on his ability to obtain and maintain substantially gainful employment. In April 2012, the Veteran was afforded an examination. The examiner noted that the Veteran had a history of complaints of back pain, with findings of lumbar spine DJD (degenerative joint disease) in 2009. He also indicated that the Veteran had last worked in 2008, and that he denied all other medical conditions that would influence employability, but that he stated that he had a mental health condition that was an influence. The examiner concluded that he was physically capable of sedentary employment. In a statement, received in June 2013, the Veteran argued that April 2012 examination was insufficient. He asserted that he had informed the examiner that he had cervical spine arthritis, an acquired psychiatric disorder, recurring skin cancer, and hypertension, but that he was not further questioned or examined as to any of these disabilities. He further contended that the side-effects of the medications he takes for these disorders were not discussed in the examination report. In an October 2013 brief, the Veteran's representative argued that the April 2012 VA examination report was inadequate, and was not compliant with the Board's remand instructions, essentially because it did not discuss all of the Veteran's disabilities, to include an acquired psychiatric disorder. It was argued that another examination was warranted. The Board agrees. The April 2012 VA examination does not contain any findings with which to assess the severity, or the permanence, of the Veteran's low back disability. The report does not contain any discussion whatsoever of his other disabilities, to include the symptoms of an acquired psychiatric disorder. Although the examiner concluded that the Veteran was physically capable of sedentary employment, there was no explanation for this conclusion, as had been requested by the Board. Accordingly, on remand, the Veteran should be afforded another examination. In addition, there is evidence that the Veteran receives care through the VA healthcare system. The April 2012 VA examination report cites to MRI (magnetic resonance imaging) studies and an EMG (electromyogram), conducted in 2009 and 2010, at the Birmingham VA Medical Center. He also appears to be receiving treatment at the VA outpatient clinic in Gadsden, Alabama, and that he has been treated for hypertension and psychiatric symptoms at the VAOPC in Guntersville, Alabama. The most recent VA records currently in the claims file are dated no later than 2006. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, prior to his examination, an attempt should be made to obtain all of the Veteran's VA records dated after 2006, as well as any other identified records. The Veteran is hereby notified that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and private health care providers who have treated him for any relevant symptoms after 2006, in order to determine if relevant records exist that are not currently associated with the claims files. Should any such treatment be identified, after securing any necessary releases, the RO should attempt to obtain these records. Regardless of whether or not the Veteran responds to this inquiry, all VA records of treatment of the Veteran dated after 2006 from the Birmingham VAMC, the VA outpatient clinic in Gadsden, Alabama, and the VAOPC in Guntersville, Alabama, should be obtained, to the extent possible. 2. After the development directed in the first paragraph of this remand has been completed, schedule the Veteran for all appropriate VA examinations to assess the severity of his disabilities, the permanence of each of these disabilities, and their impact on his ability to obtain and maintain substantially gainful employment, including, but not necessarily limited to, the following: 1) skin cancers, 2) an acquired psychiatric disorder, 3) a low back disability, 4) a cervical spine disability, 5) hypertension, and 6) peripheral neuropathy. With respect to the Veteran's employability, upon assessing the severity and permanence of each of his disabilities, the examiner should indicate whether the Veteran is (1) unemployable as a result of disability reasonably certain to continue throughout his lifetime or (2) permanently disabled so as to render it impossible for the average person to follow a substantially gainful occupation. To facilitate making these important determinations, it is absolutely imperative that the examiner(s) have the opportunity to review the evidence in the claims file, including a complete copy of this remand, for the pertinent medical and other history. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. The RO/AMC must review the examination report(s) taking into consideration the inadequacies that the Board found in the April 2012 examination report, and ensure that the opinions rendered are adequate. If they are not adequate, the RO/AMC must take corrective action. 4. Adjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant 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 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN 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).