Citation Nr: 0610258 Decision Date: 04/07/06 Archive Date: 04/13/06 DOCKET NO. 95-20 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a chronic acquired psychiatric disorder to include a depressive neurosis. (The issue of entitlement to service connection for chronic hepatitis C is the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and R. W. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from December 1976 to July 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1979 rating decision of the Houston, Texas, Regional Office which, in pertinent part, denied service connection for a chronic acquired psychiatric disorder to include a depressive neurosis. The veteran subsequently moved to Missouri and her claims file was transferred to the St. Louis, Missouri, Regional Office. In May 1997, the Board, in pertinent part, remanded the veteran's claim to the St. Louis, Missouri, Regional Office for additional action. In December 1997, the Board, in pertinent part, remanded the veteran's claim to the St. Louis, Missouri, Regional Office for additional action. The veteran subsequently moved to Michigan and her claims files were transferred to the Detroit, Michigan, Regional Office. In April 2001, the Board denied service connection for a chronic acquired psychiatric disorder to include a depressive neurosis. In January 2003, the veteran was afforded a hearing before the undersigned Veterans Law Judge. In September 2003, the Board vacated its April 2001 decision denying service connection for a chronic acquired psychiatric disorder to include a depressive neurosis and remanded the veteran's claim for service connection to the Detroit, Michigan, Regional Office for additional action. In January 2005, the veteran informed the Department of Veterans Affairs (VA) that she had moved to Texas. She requested that her claims files be transferred to the Houston, Texas, Regional Office. The RO should take the appropriate action in response to the veteran's new address of record. REMAND In December 2004, the VA scheduled the veteran for a VA examination for compensation purposes in order to ascertain the nature and etiology of her chronic acquired psychiatric disorder. A December 2004 notation in the record indicates that the veteran failed to report for the scheduled VA examination for compensation purposes. An undated written statement from the veteran received in January 2005 conveys that she was seeking service connection for post-traumatic stress disorder (PTSD). The veteran requested that she be rescheduled for a VA examination for compensation purposes. In his March 2006 Appellant's Post-Remand Brief, the accredited representative stated that the veteran had recently informed the VA of her new address. As the veteran may not have received written notice of the scheduled VA examination for compensation purposes, the accredited representative requested that the veteran's claim be remanded to the RO so that she could be again scheduled for a VA examination for compensation purposes in order to ascertain the nature and etiology of her chronic acquired psychiatric disability. The VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given that the veteran may not have received notice of the most recent scheduled VA examination for compensation purposes and in light of both the Board's award of service connection for chronic hepatitis C and her informal claim of entitlement to service connection for PTSD, the Board finds that an additional VA examination for compensation purposes would be helpful in resolving the issues raised by the instant appeal. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2005) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3, 2006). In the instant appeal, the veteran was not provided with notice of the type of evidence necessary to establish an initial evaluation and/or effective date for the claimed disability. Therefore, the issue must be remanded to the RO so that proper notice may be issued to the veteran which includes an explanation as to the type of evidence necessary to establish entitlement to an initial evaluation and an effective date for her disability. Accordingly, the case is REMANDED for the following action: 1. Review the claims files and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2005); and the Court's holding in Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3, 2006) are fully met. 2. Then contact the veteran and request that she provide information as to all treatment of her chronic acquired psychiatric disability, including the names and addresses of all health care providers. Upon receipt of the requested information and the appropriate releases, the RO should then contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran, not already of record, for incorporation into the record. 3. Request that copies of all pertinent VA clinical documentation pertaining to treatment of the veteran after May 2004, not already of record, be forwarded for incorporation into the record. 4. Then schedule the veteran for a VA examination for compensation purposes in order to determine the current nature and severity of any current chronic acquired psychiatric disorder. All indicated tests and studies, including psychological testing, should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic acquired psychiatric disability had its onset during active service; is etiological related to the veteran's inservice psychiatric complaints; is in any other way causally related to active service; or is etiologically related to or has increased in severity beyond its natural progression secondary to the veteran's service-connected disabilities. Send the claims folders to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. If the veteran does not report for the examination, the AMC should ensure that the claims file contains a copy of the notice letter sent to her. 5. Then readjudicate the issue of service connection for a chronic acquired psychiatric disorder to include a depressive neurosis with express consideration of 38 C.F.R. § 3.310(a) and the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995). If the benefits sought on appeal remain denied, the veteran should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The veteran should be given the opportunity to respond to the SSOC. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's appeal 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 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs 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. _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals 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) (2005).