Citation Nr: 1008784 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 06-32 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The Veteran had active military service from February 1978 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2007 the Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in Muskogee, Oklahoma. The transcript of that hearing is of record. In April 2008, the Board remanded this issue for additional development. Unfortunately, for the reasons set forth below, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND 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, 271 (1998). Under 38 U.S.C.A. §5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. In the April 2008 Remand, the Board asked that the Veteran be accorded a VA examination to determine the nature, extent, and etiology of any psychiatric disorder that he may have. A December 2009 Supplemental Statement of the Case (SSOC) indicates that the Veteran failed to report for an examination that was scheduled in September 2009. However, the record is unclear as to whether the Veteran received advanced notice of the examination. The claims file does not contain a copy of the letter notifying the Veteran of his September 2009 examination. Rather, the record simply suggests that VA initiated a request for a VA examination in July 2009. VA then sent the Veteran a letter dated later that same month informing him that the VA Medical Center would notify him "as to the date, time and place to report" for the examination to be conducted. A copy of a subsequent letter to the Veteran informing him of the scheduling of his September 2009 VA examination is not included in the claims folder. When a veteran fails without good cause to report for a necessary VA examination requested by VA in conjunction with a claim for increased compensation, the claim will be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a), (b) (2009). In this instance, the Board finds that good cause for the Veteran's failure to report for his September 2009 VA examination has been shown. Of particular importance to the Board in this matter is the absence of evidence in the claims folder that the Veteran was properly notified of the scheduling of his September 2009 VA examination. Therefore, the Board concludes that another attempt should be made to schedule the Veteran for the requested VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate specialist to determine the nature, extent, and etiology of any psychiatric disorder that he may have. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests should be performed, and all findings reported in detail. The examiner is specifically requested to opine as to whether it is at least as less likely than not (a 50% probability or greater) that a current psychiatric disorder is associated in any way to the Veteran's active service. A rationale for this opinion must be set forth in the report provided. 2. If the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to his last known address. Such documentation should be associated with his claims folder. If the notice is returned as undeliverable, documentation attesting to that fact should also be associated with the claims folder. 3. Thereafter, readjudicate the claim for service connection for a psychiatric disorder. If the benefit sought remains denied, the Veteran and his representative should be furnished an SSOC and be afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2009). He has the right to submit additional evidence and argument on the matter that 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 (Court) for additional development or other appropriate action (CONTINUED ON NEXT PAGE) must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2009).