Citation Nr: 20041571 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 10-18 213 DATE: June 18, 2020 REMANDED Whether new and material evidence has been submitted to reopen the claim of service connection for an acquired psychiatric disability, to include schizophrenia, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a special monthly pension is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1974 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in January 2015 and July 2015. The Veteran testified before the undersigned at a hearing held in July 2018; a transcript of that hearing is of record. In January 2019, the Board remanded this appeal for further development, to include the procurement of additional treatment records and scheduling the Veteran for additional VA examinations to evaluate his claimed acquired psychiatric disability and tinnitus. For the reasons set forth below, the Board finds that substantial compliance with its January 2019 remand directives has not occurred, and that the Veteran’s claims must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Whether new and material evidence has been submitted to reopen the claim of service connection for an acquired psychiatric disability, to include schizophrenia, is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for tinnitus is remanded. Unfortunately, the Veteran’s claims pertaining to his acquired psychiatric disability, tinnitus, and right shoulder disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. The Board’s January 2019 remand directed the scheduling of additional VA audiological and psychiatric examinations; however, the Veteran did not appear for either examination, though he now contends he had good cause for his failure to appear. VA regulations provide that where entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause fails to report for such examination or reexamination, an original claim for compensation is to be decided based on the evidence of record. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655(a). In this case, the Veteran’s attorney submitted a May 2020 letter contending that the Veteran failed to appear for his VA psychiatric and audiological examinations scheduled in January 2020 because he had moved to another location and did not know about the scheduled examinations. The Veteran’s attorney further reports that on February 21, 2020, he spoke with a VA employee at the Cleveland VA Medical Center to convey the Veteran’s updated address information and that the employee confirmed that the Veteran’s VA examinations would be rescheduled. The Board notes that VA correspondence dated February 24, 2020, confirms the telephone conference described by the Veteran’s attorney. The Board also notes that VA correspondence to the Veteran’s attorney dated February 27, 2020, confirms the Veteran’s change of address as reported by his attorney and confirms his attorney’s request to have all correspondence sent to the attorney due to the Veteran’s transient living conditions and current psychiatric condition, to include chronic paranoid schizophrenia. The Veteran’s attorney further contends that he was never contacted by VA as agreed to reschedule the Veteran’s VA examinations. In light of the foregoing, because neither the Veteran nor his attorney received notice of the scheduled VA examinations, and because VA indicated to the Veteran’s attorney that the examinations would be rescheduled, good cause for the Veteran’s failure to appear has been established. Therefore, in order to afford the Veteran every possible consideration, the Board hereby agrees to afford the Veteran another opportunity to attend his VA psychiatric and audiological examinations. However, the Veteran is reminded that while VA has a statutory duty to assist in obtaining evidence to substantiate his claims, the duty to assist is not a one-way street; therefore, he must cooperate fully with VA’s reasonable efforts to develop his claims, and it is his responsibility to cooperate in scheduling and attending the VA examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, if he fails to attend a VA examination without good cause, his service connection claims may be denied. See 38 C.F.R. § 3.655. Additionally, the Board’s January 2019 remand directed the procurement of additional treatment records, to include treatment records generated by the Ohio Department of Rehabilitation and Correction, the Toledo Correctional Institution and the Allen Oakwood Correctional Facility. The December 2019 notification letter specifically requested the Veteran identify or submit pertinent evidence from the Ohio Department of Rehabilitation and Correction, the Toledo Correctional Institution and the Allen Oakwood Correctional Facility and enclosed the appropriate authorization forms if he required assistance obtaining the records. The Board notes that the Veteran has returned multiple authorization forms to the AOJ in December 2019 and January 2020; however, he did not provide specific authorizations for these facilities. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, on remand, another attempt to obtain these records should be made. 4. Entitlement to a special monthly pension is remanded. Unfortunately, the Veteran’s special monthly pension claim must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that he is entitled to a special monthly pension as the combination of his disabilities render him unable to care for his daily personal needs or protect himself from the hazards and dangers of daily living without care or assistance on a regular basis. In May 2020, the Veteran submitted an examination report for permanent need for regular aid and attendance (the May 2020 Report), which found that the Veteran’s physical disabilities render him unable to complete some of his activities of daily living, such as bathing and preparing meals. The disabilities noted in the May 2020 Report include the following: umbilical hernia/ventral abdominal hernia; chronic obstructive pulmonary disease; diabetes mellitus with neuropathy; spinal stenosis of the lumbar spine; lumbar disc herniation; and spondylosis of the lumbar spine. However, the May 2020 report failed to address the Veteran’s current acquired psychiatric condition, to include chronic paranoid schizophrenia, or to address its impact on his activities of daily living. Accordingly, in light of the foregoing, the current record is not sufficient to determine whether the Veteran’s current disabilities render him unable to care for his daily personal needs or protect himself from the hazards and dangers of daily living without care or assistance on a regular basis. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Veteran’s claim must be remanded for a VA examination to determine whether a combination of his physical and psychiatric disabilities warrant the award of a special monthly pension. See id. Accordingly, these matters are REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the claim on appeal to include all treatment records generated by the Ohio Department of Rehabilitation and Correction, including the Toledo Correctional Institution and the Allen Oakwood Correctional Facility. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. For private treatment records, at least two requests must be made to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney and afford them an opportunity to submit any copies in their possession. 2. After the above development and any additionally indicated development has been completed, contact the Veteran’s attorney to coordinate the scheduling of a VA psychiatric examination with an appropriate clinician to determine the nature and etiology of the Veteran’s claimed acquired psychiatric disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s acquired psychiatric disability, to include schizophrenia or any other acquired psychiatric diagnosis, is due to or otherwise causally or etiologically related to his military service, to include the Veteran’s receipt of vaccinations during service. In offering these assessments, the examiner must not only discuss the disorders diagnosed on current examination, but also any psychiatric disorder or disability diagnosed during this appeal. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development and any additionally indicated development has been completed, contact the Veteran’s attorney to coordinate the scheduling of a VA audiological examination with an appropriate clinician to determine the nature and etiology of the Veteran’s claimed tinnitus. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s tinnitus is due to or otherwise causally or etiologically related to any incident during his active duty service or was incurred within a year of service. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 4. After the above development and any additionally indicated development has been completed, contact the Veteran’s attorney to coordinate the scheduling of a VA audiological examination with an appropriate clinician to determine the impact that his current disabilities have on his functional impairment during the period on appeal. The VA electronic claims file must be made available to and reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with these disabilities should be identified. Upon review of the record and examination of the Veteran, the clinician should describe the current impairment from each of the Veteran’s current disabilities and must specifically provide an opinion as to the impact of such disabilities on the Veteran’s ability to perform his activities of daily living. The examiner must provide a complete rationale for all opinions expressed and conclusions reached. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.