Citation Nr: 20021635 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-11 620 DATE: March 26, 2020 REMANDED The claim of entitlement to service connection for a psychiatric disorder is remanded. The claim of entitlement to an initial rating for lumbosacral strain, spondylolisthesis, levoscoliosis, anterior wedging T10-12 is remanded. The claim of entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1986 to April 1989. 1. The claim of entitlement to service connection for a psychiatric disorder is remanded. Please see discussion in paragraph 3. 2. The claim of entitlement to an initial rating for lumbosacral strain, spondylolisthesis, levoscoliosis, anterior wedging T10-12 is remanded. Please see discussion in paragraph 3. 3. The claim of entitlement to a total disability rating based on individual unemployability is remanded. The Board notes that a remand by the Board confers upon the claimant, 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 September 2019, the Board remanded the claim to update the Veteran’s current mailing address, request the Veteran to complete a VA Form 21-8940, and schedule the Veteran for VA examinations. Subsequently, the RO attempted to obtain the Veteran’s correct address and discovered two mailing addresses. The RO sent post-remand development letters and exam scheduling letters to both addresses. Evidence added to the Veteran’s claims file since the September 2019 Board remand shows that the Veteran was homeless since December 6, 2019, and that he was admitted to the Phoenix VA Medical Center’s (VAMC) psychiatric unit on December 14, 2019. On December 19, 2019, he was accepted for transitional housing, but continued his inpatient admission to the psychiatric unit. Therefore, he did not appear for his December 20, 2019, examinations. The most recent VA treatment record dated on December 26, 2019, indicated that the Veteran was still admitted to the Phoenix VAMC psychiatric unit. In light of the above, the Board finds that a remand is required to resend the Veteran appropriate notice and to schedule him for the VA examinations. The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include the treatment records from the Phoenix VAMC dated since December 2019. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e) (2018). 2. Then, the RO or the AMC must take all appropriate action to verify the Veteran’s current address and current contact information. The RO or the AMC should note that the Veteran was inpatient at the Phoenix VAMC as of December 26, 2019, and that he was accepted for transitional housing during his inpatient admission. 3. Then, the RO or the AMC must provide the Veteran with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 4. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected lumbar spine disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. All necessary studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to specifically include the results of range of motion testing for pain on both active and passive motion, as well as on weight-bearing and nonweight-bearing. The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s lumbar spine conducted during the course of the appeal. If the examiner is unable to do so, he or she should explain why. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. 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. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 5. Thereafter, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran’s psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. The examiner must identify all psychiatric disorders present during the period of the claim. Following the examination and a review of the relevant records and lay statements, the examiner should state an opinion as to the following with respect to each disorder: (a) Whether it is at least as likely as not that the disorder is etiologically related to the Veteran’s active service, to include the findings of anxiety on the April 1989 Report of Medical Examination. (b) Whether it is at least as likely as not that the disorder was caused or aggravated by his service-connected lumbar spine disorder. In so opining, the examiner must consider and discuss the following: (1) the March 2010 VA mental disorders examination that discusses the complaint of back pain related to a mental disorder; (2) the July 2010 VA Counseling Note that included a discussion of back issues along with psychiatric diagnoses and related health issues; (3) a November 2010 VA Counseling Note that showed the Veteran was somewhat depressed secondary to his medical issues; (4) December 2010 statements from the Veteran that discussed depression during active duty service; and (5) May 2012 statements from the Veteran that discussed the onset of depression in active duty service. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. The examining physician/specialist must provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. 6. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.