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