Citation Nr: 1627964 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 10-22 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 30 percent for undifferentiated type schizophrenia. 2. Entitlement to a rating in excess of 10 percent for degenerative changes of the cervical spine. 3. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In January 2015, the Board remanded the current issues for additional development and it now returns for further appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that this case must be remanded to comply with the Board's prior remand instructions to afford the Veteran VA examinations and to adequately document the scheduling of those examinations. See Stegall v. West, 11 Vet. App. 268 (1998) (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). As noted in the January 2015 remand, the Veteran was scheduled for VA examinations in September 2009 and January 2010 in connection with his claims for increased ratings for schizophrenia and degenerative changes of the cervical spine, to include the impact such disabilities have on his employability. The Board noted that, while the Veteran failed to report for those examinations, the letters notifying the Veteran of the examinations were not of record. Therefore, the Board could not determine the adequacy of the notice. Accordingly, the Board found that the Veteran should be afforded another opportunity to report for examinations for his claims. In its remand directives, the Board instructed the AOJ to ensure that the scheduling of the examinations was adequately documented in the claims file. The record reflects that on April 13, 2015, the AOJ requested neck and mental disorders examinations. The next relevant record in the claims file is a display image noting that the Veteran failed to report for an examination on May 12, 2015. However, despite the Board's directives, the record does not contain any documentation reflecting that the Veteran was notified of the examinations. See Stegall, supra; Kyhn v. Shinseki, 716 F.3d 572 (Fed.Cir. 2013). Therefore, a remand is necessary to rescheduled the Veteran for VA examinations to determine the severity of his service-connected schizophrenia and degenerative changes of the cervical spine, to include the impact such disabilities have on his employability. The AOJ must also ensure that the scheduling of the examinations is adequately documented in the record, to include placing any letters, telephone calls, or other correspondence notifying the Veteran of the examinations in the file. The record also indicates that the Veteran routinely receives VA care through the Louisville, Kentucky, facility. Therefore, while on remand, updated VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records from the Louisville VA facility dating from June 2015 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should arrange for the Veteran to undergo an examination for the purpose of ascertaining the severity of his service-connected undifferentiated schizophrenia. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. The examiner should describe the nature and severity of all manifestations of the Veteran's undifferentiated schizophrenia, to include the resulting impairment in his social and occupational functioning. If possible, a Global Assessment of Functioning score attributable solely to the schizophrenia should be assigned. The examiner is requested to describe the functional impact that such disability has on the Veteran's ordinary activities, to include employment. The AOJ must ensure that the scheduling of the examination is adequately documented in the record, to include placing any letters, telephone calls, or other correspondence notifying the Veteran of the examination in the claims file. 3. The AOJ should arrange for the Veteran to undergo an examination for the purpose of ascertaining the severity of his service-connected degenerative changes of the cervical spine. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. Examination findings should be reported to allow for application of pertinent rating criteria for the cervical spine. It is imperative that the examiner conduct range of motion testing, and comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. The examiner should also clearly determine whether the Veteran has any neurological impairment associated with his cervical spine disability and comment on the severity of any such disorders, if any, in terms of mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis, of the affective nerve. The examiner should also determine whether the Veteran suffers from any physician prescribed periods of bed rest due to his cervical spine disability. Finally, the examiner is requested to describe the functional impact that his cervical spine disability has on the Veteran's ordinary activities, to include employment. The AOJ must ensure that the scheduling of the examination is adequately documented in the record, to include placing any letters, telephone calls, or other correspondence notifying the Veteran of the examination in the claims file. 4. After completing the above actions, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).