Citation Nr: 0811583 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 01-09 480 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder stemming from the veteran's United States Coast Guard service between November 17, 1972 and December 22, 1972. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran had active service from April 1965 to April 1968 and from November 17, 1972 to December 22, 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2000. The Board remanded this matter for additional procedural and evidentiary development in September 2003 and May 2006. The appeal is once again being 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is compliance with the duty to assist requirements of 38 U.S.C.A. § 5103(a) (West 2002). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2007). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, the VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003. see also Wagner v. Principi, 370 F.3d 1089, 196 (Fed. Cir. 2004). In this case, the record strongly suggests that the veteran has an acquired psychiatric disorder that preexisted his five weeks of Coast Guard service in 1972. As to the question of whether the preexisting disability was aggravated by his five weeks of service, the record contains a VA clinical note dated in October 2000 in which a VA examiner noted that it appeared that the veteran's preexisting disorder was exacerbated during service. The Board notes that this opinion was offered without the benefit of a review of the claims file, and was apparently based solely on the history reported by the veteran. Nevertheless, the VCAA requires VA to provide medical examinations or obtain medical opinions when there is evidence indicating a relationship between the claimed disability and his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the veteran underwent a VA mental disorders examination in 2000; however, no opinion was rendered at that time as to whether the veteran's disability was aggravated by service. In light of the subsequent opinion offered during the course of outpatient treatment, the Board finds that a VA psychiatric examination is necessary to clarify the relationship, if any, between his claimed psychiatric disorder and his service in the Coast Guard. Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. Send the veteran a VCAA notice that discusses disability ratings and effective dates consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule a VA psychiatric examination to determine whether the veteran's acquired psychiatric disorder underwent aggravation during his period of Coast Guard service in late 1972. The examiner should provide a complete rationale for any opinion provided. The examination report should indicate whether the claims file was reviewed. 3. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems necessary, the RO should again review the record and readjudicate the veteran's claim. If the decision remains unfavorable to the veteran, a supplemental statement of the case should be prepared. The veteran and his representative should be provided with the supplemental statement of the case and an appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 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 Supp. 2007). ____________________________________________ MICHAEL LANE Acing Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs