Citation Nr: 0000456 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 91-47 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased rating for major depression, with psychotic symptoms, currently evaluated as 70 percent disabling. 2. Entitlement to a total rating for compensation purposes based upon individual unemployability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and mother INTRODUCTION The veteran served on active duty from January 1973 to April 1974. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in San Juan, Puerto Rico (hereinafter RO). REMAND The Board remanded this case to the RO in September 1998, for further development of the issues, to include a VA examination. The Board notes that the RO requested an examination in February 1999; however, a response from the VA Medical Center in February 1999, noted that the veteran failed to report for the scheduled examination. Nevertheless, the Board notes that the address for notification of the veteran of the scheduled examination was different from the address used to request information from the veteran as directed in the Board's remand, as well as the address of the veteran on the supplemental statement of the case. It therefore appears that the veteran was never notified of the scheduled examination or, in the alternative, did not receive the request for further development or the supplemental statement of the case. The Board cannot deny a veteran's claim for failure to report for an examination or limit its assessment of his claim to the evidence of record if there is no evidence in the claims file to show that the veteran was properly notified of where and when to report for an examination. See Hyson v. Brown, 5 Vet. App. 262 (1993). Although there is a presumption of regularity in the law that supports "'the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties,'" it is doubtful that this presumption will attach where there is no documented evidence that proper notice was sent to the appellant's last address of record. See, generally, Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1991), quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); see Davis v. Brown, 7 Vet. App. 298, 300 (1994); Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992); Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992); Mason v. Brown, 8 Vet. App. 44, 54 (1995), quoting Saylock, 3 Vet. App. at 395 (In Saylock, the United States Court of Appeals for Veterans Claims (hereinafter Court) held that it must presume that the regional office properly discharged its duties by mailing a copy of the regional office decision to the "latest address then of record."). Additionally, in the remand dated in September 1998, the Board requested that an English language translation of the private medical records from J. L. Valderrabano, M.D., and the Hospital of Siquiatria written in Spanish be obtained. This was not accomplished. Accordingly, this case is remanded to the RO for the following actions: 1. All pertinent VA and private medical treatment records subsequent to 1991 not already obtained, should be obtained and associated with the claims file. Any records written in Spanish should be translated into the English language prior to the return of the case to the Board for appellate review. 2. A translation into the English language of the medical records of J. L. Valderrabano, M.D., dated in April 1997, and the Hospital of Siquiatria must be included in the claims file. 3. The veteran's correct address should ascertained and all correspondence to the veteran associated with the development requested by this remand should be mailed to the verified address. 4. The veteran should be afforded a VA psychiatric examination to determine the extent of his service-connected major depression, with psychotic symptoms. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner is requested to provide an opinion as to whether the veteran's service-connected psychiatric disorder results in gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Additionally, the examiner is requested to provide an opinion as to whether the veteran's service-connected psychiatric disorder results in virtual isolation in the community; or, if it results in totally incapacitating psychoneurotic symptoms, bordering on gross repudiation of reality, with disturbed though or behavioral processes associated with almost all daily activities, such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or, if the veteran's service-connected psychiatric disorder results, in and of itself, the inability to obtain or retain employment. The claims file must be made available to the examiner prior to the examination to facilitate a thorough, longitudinal review of the evidence. 5. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (1999). 6. If the veteran fails to report for the scheduled examination, a dated copy of the letter informing the veteran where and when to report for the scheduled examination must be placed in the claims file to provide evidence that the VA mailed the notice of the examination to the verified address for the veteran as requested above. 7. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the report does not include all test reports, special studies, or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). "If the [examination] report does not contain sufficient detail it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Green v. Derwinski, 1. Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 8. Thereafter, if any issue on appeal remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives. The Court has stated that compliance by the RO is neither optional nor discretionary. 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. Stegall v. West, 11 Vet. App 268 (1998). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the regional offices to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOY A. MCDONALD Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).