Citation Nr: 1127764	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  08-18 166	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1952 to February 1954.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Hartford Regional Office (RO) of the Department of Veterans Affairs (VA) in Newington, Connecticut.  By that rating action, the RO declined to reopen a previously denied claim for service connection for PTSD.  The Veteran appealed the RO's November 2007 rating decision to the Board.

In January 20098, the Veteran testified before a Decision Review Officer (DRO) at the Hartford RO.  A copy of the hearing transcript has been associated with the claims files.

In November 2009, the Board recharacterized the Veteran's claim as one of entitlement to service connection for an acquired psychiatric disorder, including PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (where the Court of Appeals for Veterans Claims held in part that a claim of service connection for PTSD may include any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record); see also 38 C.F.R. § 19.35 (providing that certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue). 

The Board remanded the claim to afford the Veteran due process with appropriate notification for his claim on appeal, including the full criteria for new and material evidence pursuant to 38 C.F.R. § 3.156.  Notice was sent to the Veteran in compliance with the remand directives in March 2010.  Thereafter, the Appeals Management Center (AMC) found that new and material evidence was not received to reopen the Veteran's previously denied claim for service connection for for an acquired psychiatric disorder, to include PTSD, as reflected in an April 2011 supplemental statement of the case.

VA has received additional private medical evidence after issuance of the most recent supplemental statement of the case in May 2011.  This newly received evidence pertains to a claim for service connection for an acquired psychiatric disorder; however it consists of medical evidence duplicative of what was in the claims file at the time of issuance of the May 2011 supplemental statement of the case.  Since this evidence is duplicative of other evidence of record, referral to the RO for initial consideration is not warranted.  38 C.F.R. §§ 19.37, 20.1304 (2010).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Board presently reopens the claim, and is compelled to again REMAND the appeal to the AMC for consideration of liberalizing regulations which were promulgated after the Board's last review. 


FINDINGS OF FACT

1.  The Veteran's original claim of service connection for PTSD was denied by an unappealed rating decision in August 2004.  

2.  The evidence received since the August 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for PTSD and raises a reasonable possibility of substantiating the claim.






CONCLUSIONS OF LAW

1.  The August 2004 rating decision which denied entitlement to service connection for PTSD is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2010).

2.  Evidence received since the final August 2004 determination denying the Veteran's claims of entitlement to service connection for PTSD is new and material, and the Veteran's claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.1103 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (observing that the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran dated in January 2007 that fully addressed all notice elements.

In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained service treatment records, VA outpatient treatment records and private medical records.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

New and Material Evidence

The Veteran is seeking to reopen a claim for service connection for service connection for PTSD.  The Board denied entitlement to service connection for PTSD in an August 2004 decision, which is final.  38 U.S.C. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2009).

In November 2006, the Veteran submitted a claim to VA seeking to reopen his claim for service connection.  In a November 2007 rating decision, the RO declined to reopen the claim, finding that new and material evidence had not been submitted.

The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of an attempt to reopen a claim.  Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).  The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim.  The Board will therefore undertake a de novo review of the new and material evidence issues.

As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material."  Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision."  Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

The evidence of record at the time of the last final, August 2004 RO decision consisted of the Veteran's service treatment records; private treatment records from Windham Community Hospital, Natchaug Hospital, Middlesex Hospital, Whiting Forensic Institute, Hartford Hospital, and St. Francis Hospital; VA outpatient treatment records; VA examination reports; stressor statements; statements from the Veteran that listed numerous hospital admissions; and an internet article that discussed Operation Little Switch.

A February 1954 separation examination noted a normal psychiatric evaluation.  The examining physician noted:

1.  No serious injuries, operations, or diseases-EPTE [Existed Prior to Entry].

2.  No history or evidence of venereal disease or any communicable diseases.

3.  No Army hospitalization.

4.  No complaints of a medical nature at time of this examination.

In regard to post-service treatment records, the Veteran was admitted to several private hospitals and was diagnosed with alcohol dependence and several psychiatric disorders, including chronic depression (see January 1982 Windham Community Hospital note); major depressive disorder (see October 1995 Middlesex Hospital note); personality disorder not otherwise specified (NOS) and dependent personality disorder (see November 2001 Hartford Hospital Institute of Living note); and mood disorder secondary to alcohol dependence, major depressive disorder, and PTSD (see March 2002 St. Francis Hospital notes).

In September 1979, the Veteran was afforded his first VA examination.  The examiner diagnosed anxiety neurosis and noted the Veteran attributed his anxiety related to losing his teeth due to an infection during service in Korea.  

A November 1983 VA examiner diagnosed generalized anxiety disorder (GAD), which did not appear related to his time in service, and alcohol dependence in remission.  

VA outpatient treatment records included diagnoses of depression (see October and November 2001 notes); alcohol dependence (see November 2001 and October 2002 notes); panic disorder (see October 2002 note); PTSD, bipolar disorder, and alcohol and nicotine dependence (see October 2002 and April 2004 notes).  

In a March 2002 St. Francis Hospital psychiatric consultation report, the Veteran reported he had PTSD symptoms, including flashbacks, triggered by the events of September 11, 2001.  He was a pharmaceutical carrier in New York City.

Also during VA treatment, the Veteran mentioned he had recurrent thoughts or dreams of Korean combat experiences (see October 2002 and April 2004 notes).  In an April 2004 note, he reported that he saw combat in Korea as a rifleman in the Army.  The April 2004 examiner related the Veteran experienced symptoms consistent with PTSD since his return from Korea, but the underlying symptoms went "unrecognized and masked by severe alcohol abuse."

In a July 2003 stressor statement, the Veteran listed the following events: violent incidents during his involvement in Operation Little Switch, and violence and death when prisoner of war (POW) camps were opened and prisoners were released into Pusan.  

During a VA examination in June 2004, the Veteran related that during service, his unit was sent to Koje-Do to subdue prisoners who staged an uprising at the POW camp.  He related there was violence in the compound and he stabbed prisoners with a bayonet.  He also described riots at the U.S. Embassy in Pusan, Korea, and indicated that he was charged with keeping rioting civilians away from the embassy.  He noted distress triggered by crowds because it reminded him of experiences in Korea when he performed crowd control and prison duties.

The examiner diagnosed bipolar disorder, alcohol dependence, and PTSD.  He concluded:


[The Veteran] presents with a history of mixed symptomatology, including significant bipolar illness, as well as chronic and severe alcohol dependence.  Based on the veteran's self-report today, he does, in fact, meet criteria for PTSD, though the military traumas he describes are somewhat vague and relatively mild.  Nonetheless, his report does sound credible.  The symptoms attributable to PTSD related to his military service appear to be independent from his bipolar illness and alcohol dependence, and represent only a small portion of his overall disability, which is significant...

Due to the lack of verifiable stressor, the RO denied the claim in August 2004.  

Evidence submitted since the August 2004 rating decision includes private hospital records from St. Francis Hospital dated March 2002; VA outpatient treatment records from December 2004 to June 2007; an internet article about Koje-Do POW camps; the transcript from a January 2009 DRO hearing; various statements from the Veteran; and treatment records from the Rocky Hill Veterans Home dated from 1996 to September 2010.  Such evidence was not previously before agency decisionmakers and thus is new.  

The Veteran's November 2007 stressor statement, statements made during the January 2009 DRO hearing, and a statement dated in April 2010 are material because they raise a reasonable possibility of substantiating the Veteran's claim.  

The evidence submitted in support of reopening the claim includes the Veteran's competent and, under Justus, presumed to be credible account of an in-service stressor.  The occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination.  Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993).  The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in combat with the enemy, as established by recognized military combat citations or other official records.


Generally, if VA determines either that the Veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor and his testimony must be corroborated by credible supporting evidence.  See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996).

The newly submitted evidence, when viewed together, raises a reasonable possibility of substantiating the claim.  Further, under newly enacted regulation 38 C.F.R. § 3.304(f)(3)(2010), VA will accept a Veteran's lay statement regarding an in-service stressor involving fear of hostile military or terrorist activity, even if that statement was previously of record, as sufficient to constitute new and material evidence.  For purposes of the regulation, "fear of hostile military or terrorist activity" means:

...a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

Accordingly, the criteria under 38 C.F.R. § 3.156(a) have been met and the claim is therefore reopened.


ORDER

As new and material evidence has been presented sufficient to reopen a claim of entitlement to service connection for PTSD, the claim is granted to this extent.  


REMAND

During the pendency of this appeal and subsequent to the Board's last review, VA liberalized regulations, specifically  with regard to the establishment of service connection for PTSD.  Given that the claim has been reopened, VA must now consider the new regulations in this claim.  

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304.

Generally, the occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination.  See Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993).  

If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f); West v. Brown, 7 Vet. App. 70 (1994).

If the Veteran did not engage in combat with the enemy, or if the claimed stressors are not related to combat, the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and those stressors must be corroborated by credible supporting evidence.  Cohen v. Brown, 10 Vet. App. 128 (1997).

If the evidence establishes that the Veteran engaged in combat and the claimed stressor is related to combat, the Veteran's lay testimony alone is sufficient to establish the occurrence of the alleged stressor when the allegation is consistent with the facts and circumstances of his service.  Id.

However, service connection for PTSD may now be granted if the evidence demonstrates (1) a current diagnosis of PTSD (rendered by an examiner specified by the regulation); (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and (3) evidence that the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA.  See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,852 (July 13, 2010).

Throughout the record, the Veteran has alleged that he "saw combat" in Korea as an Army rifleman (see August 2004 VA outpatient treatment record), and he has recurrent thoughts or dreams of Korean combat experiences (see October 2002 VA outpatient treatment record).  His DD-214 reveals that his most significant duty assignment was with the 226th Ordnance Base Depot in Korea.  In an April 2010 statement, he alleged that the 226th Ordnance was a direct combat support depot and while he was stationed there, the depot took fire.  




In compliance with a November 2009 Board remand, a National Personnel Records Center (NPRC) search was requested for the Veteran's complete service personnel records, to include any orders or travel documents.  The April 2010 response indicated that the Veteran's records were fire related and the only document on file was the Veteran's DD-214, which was mailed.  

A February 2011 search was negative for morning reports for the 4405 Headquarters and Headquarters Company, 226 Ordnance Base Depot from April 1, 1953 to April 30, 1953, after a request for sick or morning reports pertaining to head and mouth injuries sustained by the Veteran.  On remand, if the Veteran submits any further information relative to claimed stressors, the AMC/RO must attempt to identify any combat service, and further factual investigation must be conducted.

The Veteran testified about his involvement in the Korean Armistice during a January 2009 DRO hearing.  He asserted that POWs were released into Pusan and they began to riot, kill people, and burn down the city.  There was concern about the wellbeing of the U.S. Embassy, and the Veteran was reportedly sent to try to quell the riot at the Embassy.  He related that the rioters rolled a 50 gallon gasoline canister which exploded, causing the contents to splash onto his skin.  He testified that he was sent to the 25th Medical Evacuation Hospital with burns from the gasoline  

The Veteran's service treatment records do not include any hospital records from the 25th Medical Evacuation Hospital, or any evidence of burns or residual scarring on the Veteran's body.  

During a June 2004 VA examination, the Veteran described two stressful incidents during service, occurring within the last three to four months of the war:

1.  He was sent on temporary duty to the island of Koje-Do to subdue prisoners who were staging an uprising at a POW camp.  He referred to violence in the compound, and claimed he subdued and stabbed prisoners with bayonets.  He claimed he was at the duty station for one and one-half days.

2.  He was sent on temporary duty to Pusan to keep rioting civilians away from the U.S. Embassy.  He reported he performed this duty for approximately four days.  

He related that he experienced distress in crowds because they reminded him of experiences in Korea doing crowd control and prison duty.

A June 2005 private treatment note from the Rocky Hill Veterans Home documented the Veteran's assertion that he did "terrible things" and he killed six people in Korea.

The AMC/RO must attempt to identify any missing service personnel records, including orders and/or morning reports, that may list the Veteran's temporary duty in Koje-Do and Pusan.  The Veteran must also be notified that he should submit any evidence in his possession to substantiate his claimed stressors.

Whether or not the Veteran's stressors are verified, there is insufficient evidence on file to make a determination on the claim, given the recent liberalization of applicable regulation.  Therefore, a remand is necessary to afford the Veteran a VA examination to determine whether service connection can be granted under 38 C.F.R. § 3.304 (2010).  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC must ask the Veteran to identify all records of VA and non-VA health care providers who have provided any psychiatric treatment.  After obtaining any appropriate authorizations for release of medical information, the RO/AMC must obtain relevant and previously unobtained records from each health care provider the Veteran identifies.   Advise the Veteran that with respect to private medical evidence, he may alternatively obtain the records on his own and submit them to the RO/AMC. Further advise the Veteran that he may submit any further information relative to his claimed stressors supportive of his claim of service connection for PTSD.

The records sought must include any relevant records of VA or private treatment created or updated after the most recent medical evidence associated with the claims folder from September 2010.  If the Veteran provides any further information relative to substantiation of his claimed stressors, conduct any appropriate research.

2.  After waiting an appropriate time period for the Veteran to respond and for all records to be collected, the RO/AMC must schedule the Veteran for a VA examination by a clinician with appropriate expertise in mental health.  The purpose of the examination is to determine whether any current acquired psychiatric disorder is related to any incident of service, to include the Veteran's claimed stressors. 

The following considerations must govern the examination:




a.  The claims file and a copy of this remand must be made available to the clinician, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

b.  The clinician must review all medical and lay evidence of record.  In particular, the Board calls the clinician's attention to: 

(1) an October 2002 VA outpatient treatment record in which the Veteran was diagnosed with Bipolar Disorder; 

(2) treatment records from St. Francis Hospital in March 2002 in which the Veteran reported worsening depression and PTSD after the events of September 11, 2001; 

(3) VA outpatient treatment records from June to July 2005 and August 2004, in which the Veteran described PTSD symptoms after September 11, 2001; and 

(4) a June 2004 VA examination report in which the Veteran described his experiences at Koje-Do subduing and stabbing prisoners, and his duties to quell rioters at the U.S. Embassy in Pusan, and the examining psychiatrist's opinion that the Veteran's PTSD symptoms appeared to be independent from his bipolar illness and alcohol dependence.

c.  Regardless of whether the Veteran's claimed stressors are substantiated, the clinician must consider the Veteran's lay testimony regarding his symptomatology since service and provide an opinion as to whether the Veteran's claimed in-service stressors concerning duty at Koje-Do and the U.S. Embassy at Pusan created "fear of hostile military or terrorist activity" in the Veteran, as described in 38 C.F.R. § 3.304(f)(3)(2010).

d.  If deemed appropriate by the clinician, the Veteran must be scheduled for further examinations.  All indicated tests and studies must be performed. 

e.  The clinician must provide a diagnosis for each mental health condition found from considering the claims file and from examining the Veteran. 

f.  For each condition diagnosed, the clinician must specifically opine whether that condition began during service, was chronically worsened during service, or is related to any incident of service, to include the claimed in-service stressors. 

g.  In reaching this determination, the clinician must report as to whether psychiatric symptoms shown during or within one year of service, or shortly thereafter may be identified as a manifestation or "prodromal" aspect of any later-diagnosed psychotic disorder.  38 C.F.R. § 3.307(c).

h.  In all conclusions, the clinician must identify and explain the medical bases of his or her opinion with reference to the claims file.  If the clinician is unable to render the requested opinions without resort to speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 

3.  The RO/AMC must readjudicate the claim for entitlement to service connection for an acquired psychiatric disorder.  If the benefit sought remains denied, the RO/AMC must provide the Veteran and his representative with a supplemental statement of the case and an appropriate period of time for response. 

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claim.  The consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2010).  In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any sent notice was returned as undeliverable.  
By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue.  

The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts.  It has been held that compliance by the Board or the RO is neither optional nor discretionary.  Where the remand orders of the Board or the Courts 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, 271 (1998).  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 Supp. 2010).




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs