Citation Nr: 23009441 Decision Date: 02/14/23 Archive Date: 02/14/23 DOCKET NO. 14-41 720 DATE: February 14, 2023 REMANDED Entitlement to an increased rating in excess of 30 percent for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1966 to August 1969. 1. Entitlement to an increased rating in excess of 30 percent for an acquired psychiatric disability is remanded. The Board notes that this claim was previously remanded by the Board in September 2022 for further development, to include affording the Veteran a VA examination to assess the nature and severity of his service-connected psychiatric disability. After a thorough review of the development conducted by the RO during the previous remand period, the Board finds that substantial compliance with the Board's last remand directive remains in want. As such, remand is again required for the VA to fulfill its duty to the Veteran's claim. As an initial matter, the Board notes that the Veteran's claim for increased rating has been pending for quite some time. To this end, such claim was previously denied by the Board in March 2018, to which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), resulting in the October 2019 Joint Motion for Remand (JMR). In that JMR, the Court vacated the March 2018 Board decision, and remanded the issue for readjudication. A close review of the JMR ostensibly noted that the only other relevant VA examination that spoke to the nature and severity of the Veteran's psychiatric disability was inadequate, and another VA examination was required to speak to the contemporaneous condition on appeal; this also included providing a retrospective opinion on the content of the previous assessments/examinations. Upon remand from the Court, the Board remanded the Veteran's claim to attempt to schedule the Veteran for an examination several times. To this end, the long and complex procedural history of the previous remands was described by the last Board remand, and incorporated, in full, herein. The Board points out that regardless of such developments, no actual examination had been conducted. As such, in September 2022, the Board made another attempt to schedule the Veteran for a VA examination. The Board finds, however, that the actual procedure and notice given during this remand to schedule such examination, to be not proper, and fails to give the Veteran adequate notice and time to appear at an examination. Here, a notice that the Veteran failed to appear at a scheduled examination is noted in October 2022, less than a month after the date of the actual remand, with no evidence of notice to the Veteran. Shortly after on November 14, 2022, the Veteran was notified by the RO that he would be contacted to be scheduled for an examination; it should be noted this notice came after the Veteran had already missed the October 2022 examination. Thereafter, less than 30 days after, on December 8, 2022, the Veteran was again noted to be a 'no show' at a scheduled examination. For both examinations, the claims file shows no actual evidence of notice given to the Veteran of the specific date, time, or place of the examination, that would constitute as reason/adequate notice. The Board finds that, considering the truncated period between any potential notice given and the Veteran's examination time/date, and cognizant of the importance of obtaining a contemporaneous evaluation of the Veteran's current disability picture with regards to his psychiatric disability, remand is again required. To this end, this will constitute as the final attempt by the VA to try to coordinate an appropriate time and date to assess the Veteran's disability, and to provide an adequate notice thereof. The Veteran is also advised that the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Properly notify, and document such notification, both the Veteran and any representative of the scheduled date, time, and place of the examination. Proper notification includes providing the Veteran notice of such examination at least 30 days prior to the actual examination. Make at least two attempts to notify and schedule the Veteran for an examination. Associate the notifications with the record. 2. Schedule a VA examination to help assess the severity of the service-connected acquired psychiatric disability. The VA examiner should review the January 2013 VA examination, keep in mind that the Veteran may continue to under-report symptoms, and obtain an account of the Veteran's past and present symptoms from February 6, 2012, until the present. 3. If the Veteran does not appear at the examination, the examiner is asked to provide an addendum opinion regarding the nature and severity of the Veteran's psychiatric condition, to the best of their ability based on the medical evidence and treatment records already in the claims file. The examiner is explicitly asked to speak to, and/or reconcile, the notation by the January 2013 VA examiner which noted under reporting of symptoms, and whether such connotation was subsumed in the assessment by that examiner. If the examiner cannot make any such determination, the examiner must explicitly say so, and why such analysis cannot be made. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.