Citation Nr: 1810878 Decision Date: 02/20/18 Archive Date: 03/01/18 DOCKET NO. 11-09 861 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disability, claimed as depression, to include as secondary to service-connected residuals of a low back injury with degenerative arthritis. 2. Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to service-connected residuals of a low back injury with degenerative arthritis. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to February 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2013 rating decision in which the RO, inter alia, denied service connection for depression and for multilevel degenerative spondylitic disease of the cervical spine. Later that month, the Veteran filed a notice of disagreement (NOD) with these denials. A statement of the case (SOC) was issued in June 2015, and the Veteran filled a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2015. The Board notes that, while the Veteran was previously represented by Edward M. Farmer, a private attorney, in October 2014, the Veteran granted a power-of-attorney in favor of Ralph J. Bratch, another private attorney with the same firm, with regard to the claims on appeal. The Veteran's current attorney has submitted correspondence on his behalf. The Board has recognized the change in representation. In December 2015, the Board denied service connection for a psychiatric disability (claimed as depression) and for degenerative disc disease of the cervical spine (previously characterized as multilevel degenerative spondylitic disease of the cervical spine). In March 2016, the Board vacated its December 2015 decision on its own motion due to denial of due process to the Veteran. More specifically, at the time of the December 2015 decision, information pertaining to an outstanding Freedom of Information Act (FOIA) request had been received by the Board but had not been addressed, and the Veteran's attorney had requested an extension of time to submit additional evidence. In September 2016, the Board remanded the claims for service connection for a psychiatric disability and for a cervical spine disability to the agency of original jurisdiction (AOJ) for further action, to include additional development of the evidence. After taking further action, the AOJ continued to deny the claims (as reflected in a November 2017 supplemental SOC (SSOC)), and returned the matters to the Board for further appellate consideration. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claims on appeal are, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, it is again noted that in February 2014, the Board remanded claims for a rating in excess of 20 percent for service-connected residuals of low back injury with degenerative arthritis and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. As the AOJ has not yet completed the directed actions on these claims and these matters have not been recertified to the Board, they are not properly before the Board at this time, but may be the subject of a future Board decision. REMAND Unfortunately, the Board finds that further action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the September 2016 remand, the Board found that the evidence of record was inadequate to adjudicate the Veteran's claims for service connection for a psychiatric disability and for a cervical spine disability, and directed the AOJ to arrange for the Veteran to undergo a VA mental disorders examination and to obtain a VA addendum opinion concerning the cervical spine. According to various internal VA documents (e.g., VA Compensation and Pension Exam Inquiries and Centralized Admin Accounting Transactions System (CAATS) - Exam Requests), VA cervical spine and mental disorders examinations were requested in March 2017, and a VA cervical spine examination was scheduled in April 2017, while a VA contracted mental disorders examination was scheduled in October 2017. However, a VA Compensation and Pension Exam Inquiry indicates that the scheduled cervical spine examination was cancelled in April 2017 because the Veteran failed to report to the examination. Also, a CAATS Exam Request indicates that the scheduled mental disorders examination was cancelled in October 2017 because the Veteran failed to show up to the examination. Notably, however, the Board did not direct the AOJ to schedule the Veteran for a VA cervical spine examination. Although the Board did direct the AOJ to "[o]nly arrange for the Veteran to undergo further VA examination if deemed necessary in the judgment of the individual designated to provide the addendum opinion[,]" there is no such indication in the claims file that a VA examination was deemed necessary. Additionally, and nonetheless, a review of the claims file reveals that the Veteran and his attorney may not have received notice of the scheduled examinations. While it appears that an April 2017 letter was sent to the Veteran with regard to an April 2017 VA examination, it was returned as undeliverable. In addition it was sent to an address in Lancaster, Pennsylvania, despite an October 2016 correspondence from the Veteran's attorney that provided an address in Marietta, Pennsylvania for the Veteran; and there is no indication that this letter was also sent to the Veteran's attorney. Furthermore, as for the October 2017 scheduled examination, there is no documentation of record that conclusively shows that the Veteran or his attorney was notified of this examination. Also, the record shows that various documents were mailed to the Lancaster, Pennsylvania address as late as December 2017 and were also returned as undeliverable, suggesting that if any letters were sent to the Veteran notifying him of the October 2017 examination, they were most likely also sent to this Lancaster, Pennsylvania address. Under the above-noted circumstances, and in the interests of due process, the Board finds that it is necessary to again remand the matters for the developed previously requested, as outlined in the Board's September 2016 remand. See Stegall, supra. Thus, on remand, for the psychiatric disability claim, the AOJ should arrange for the Veteran to undergo a VA mental disorders examination by a psychiatrist or psychologist. For the cervical spine claim, the AOJ should arrange to obtain an addendum opinion from the examiner who evaluated the Veteran in March 2013, or from an appropriate medical professional, based on claims file review (if possible); the AOJ should only arrange for further examination of the Veteran if such is deemed necessary in the judgment of the individual designated to provide the addendum opinion. In addition, to ensure that notice of the scheduled examination(s) is sent to the Veteran's correct, current address, the AOJ should take all necessary action to verify the Veteran's correct, current address. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of his claim(s). See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, , to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania, and that records from that facility dated through October 2015 have been associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the Pittsburgh VAMC all outstanding records of evaluation and/or treatment of the Veteran since October 2015, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Undertake all necessary action to verify the Veteran's correct, current mailing address. All efforts to confirm his correct, current mailing address should be documented in the claims file. 2. Obtain from the Pittsburgh VAMC (and any associated facility(ies)) all outstanding records of evaluation and/or treatment of the Veteran since October 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA mental disorders examination, by a psychiatrist or psychologist. The contents of the entire, electronic claims file, (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated psychiatrist or psychologist, and the examination report should include discussion of the Veteran's documented history and lay assertions. All indicated tests and studies (to include psychological testing, if warranted) should be accomplished (with all results made available to the requesting psychiatrist or psychologist prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify all acquired psychiatric disorder(s) present currently or present at any time pertinent to the current claim for service connection (even if now asymptomatic or resolved). Diagnoses must be rendered in accordance with the DSM-5 criteria. Then, with respect to each such diagnosed acquired psychiatric disorder, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) had its onset during or is otherwise medically related to the Veteran's military service, or, if not (b) was caused OR is or has been aggravated (worsened beyond the natural progression) by his service-connected back disability. For any diagnosed psychiatric alcohol dependence or polysubstance dependence, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability is a primary disorder or a secondary disorder caused or aggravated by his service-connected back disability. If aggravation of any diagnosed psychiatric disorder is found, the examiner should attempt to quantify the degree of additional disability resulting from aggravation, to include identifying (to the extent possible), the baseline level of disability prior to the aggravation. In addressing all the above, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include the Veteran's assertions as to the nature, onset and continuity of psychiatric symptoms. Notably, the absence of documented evidence of symptoms and/or diagnosis of a specific disability in or shortly after service, should not, alone, serve as the sole basis for a negative opinion.. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating each opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from the examiner who evaluated the Veteran in March 2013 an addendum opinion addressing the etiology of current cervical spine disability.. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain medical opinion from an appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions. The examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cervical spine disability: (a) had its onset during or is otherwise medically related to the Veteran's military service; or, if not (b) was caused, OR is or has been aggravated (worsened beyond the natural progression) by the service-connected back disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, to include identifying (to the extent possible), the baseline level of disability prior to the aggravation. In addressing all the above, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include the Veteran's assertions as to the nature, onset and continuity of cervical spine/neck symptoms. Notably, the absence of documented evidence of symptoms and/or diagnosis of a specific disability in or shortly after service, should not, alone, serve as the sole basis for a negative opinion.. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating each opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 9.. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his attorney a SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).