Citation Nr: 0737772 Decision Date: 11/30/07 Archive Date: 12/06/07 DOCKET NO. 04-39 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert W. Legg, Esq. ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which continued the denial of the veteran's claim for service connection for PTSD. Pursuant to an April 2006 motion and the Board's granting thereof in May 2006, this case has been advanced on the Board's docket under 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). In June 2006, the Board denied the veteran's claim. The veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In July 2007, the Court granted a Joint Motion for Remand. As such, this claim is again before the Board. The Board notes that subsequent to the Court's Order, the veteran's representative submitted additional evidence with the corresponding Agency of Original Jurisdiction (AOJ) consideration waiver. Within these documents was a new claim for individual unemployability. As indicated in the June 2006 Board decision, although the veteran has not explicitly applied for nonservice-connected pension benefits, there is medical evidence indicating that he is permanently disabled and has little to no income. These claims are REFERRED back to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND After a thorough review of the veteran's claims folder, the Board has determined that additional development is required prior to the adjudication of the veteran's claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Review of the veteran's treatment records reveals that the veteran was given a diagnosis of PTSD from the VA outpatient treatment clinic. There is no information to substantiate the etiology of the veteran's diagnosis. There is no indication that the veteran's alleged stressors were the cause of his PTSD. Though the veteran did provide a private psychological evaluation from Dr. Elaine M. Tripi, Ph.D., the Board finds that a VA examination is required to clarify the additional evidence submitted on the veteran's behalf, following the Joint Motion for Remand by the Court. Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided with a letter explaining VA's duties to notify and assist, compliant with current case law. 2. The RO/AMC should contact the veteran in order to obtain any available psychological treatment records from May 2004 to the present. This letter should also request that the veteran specifically explain the stressors that he experienced during service. The Board notes that the original stressors provided by the veteran, and the stressors now stated by his representative, are not the same. Clarification is needed. 3. After compliance with the paragraphs above, the veteran should then be scheduled for a VA PTSD examination. The examiner should be provided with a statement specifying which, if any, reported stressors have been verified. The examiner should also take note of the stressors originally raised by the veteran and the stressors now raised by his representative. The examiner is asked to specifically indicate which, if any, of the confirmed stressors are adequate to support a diagnosis of PTSD. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. The claims folder should be made available to the examiner for review of pertinent documents contained therein. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the appellant and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Board is obligated by law to ensure that the RO complies with its directives; 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. See Stegall v. West, 11 Vet. App. 268 (1998). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & West Supp. 2007). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).