Citation Nr: 1134592 Decision Date: 09/15/11 Archive Date: 09/23/11 DOCKET NO. 94-31 815A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a disability manifested by chest pain. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION 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 Veteran served on active duty from March 1982 to March 1985; he also had service in the Reserves. This case originally came before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). A September 2009 Board decision denied service connection for a disability manifested by chest pain. The September 2009 Board denial of service connection for a disability manifested by chest pain was vacated and remanded to the Board by the Court of Appeals for Veterans Claims (Court) in August 2010 based on an August 2010 Joint Motion For An Order Vacating The Board's Decision And Incorporating The Terms Of This Remand (Joint Motion).. A letter was sent to the Veteran, with a copy to his representative, on September 22, 2010, in which the Veteran was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. Additional evidence was added to the claims files in December 2010 along with a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2010). 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. REMAND (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) The August 2010 Joint Motion found that the September 2009 Board denial of service connection for a disability manifested by chest pain needed to be vacated because it was unclear whether VA provided proper notice to the Veteran under 38 C.F.R. § 3.159(e) (2010) of the unavailability of records from his Reserve Units, because the Board failed to adequately consider the lay testimony and pertinent medical evidence after service separation in determining whether there was continuity of symptomatology, and because the Board did not consider and discuss all of the VA treatment records regarding gastroesophageal reflux disease (GERD) and chest pain after service. The Board was instructed to consider and discuss whether the evidence of record entitled the Veteran to a medical examination and nexus opinion. The Joint Motion referred to an April 1985 VA treatment report in which the Veteran complained of chest pain, indigestion, diarrhea, blood in his stool, not feeling well, and diminished appetite. The Board is bound by the findings contained in the joint motion, as adopted by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case; the Board is therefore not free to do anything contrary to the Court's prior action with respect to the same claim). VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2010), examinations will be requested whenever VA determines, as in this case, that there is a need to verify the etiology of a disability. See also 38 C.F.R. § 3.159 (2010). An October 2009 rating action denied service connection for PTSD, and the Veteran was notified of this decision in November 2009. The Veteran filed a timely notice of disagreement to this denial in November 2009. However, no Statement of the Case has been promulgated on this issue. Consequently, the Board is obligated to remand this issue to the RO for the issuance of a Statement of the Case and notification of the Veteran's appellate rights. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO will request that the Veteran provide the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for a disability manifested by chest pain, to include any gastrointestinal disability, since May 2010, which is the date of the most recent medical evidence on file. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform the Veteran of this and provide him an opportunity to submit copies of the outstanding medical records. 2. The AMC/RO will notify the Veteran of the unavailability of records from his Reserve Units, indicated by documents that were added to the claims files in July 2009, and of the unavailability of Social Security Administration records, indicated by a document that was added to the claims files in October 2009, in accordance with the provisions of 38 C.F.R. § 3.159(e). 3. The AMC/RO will schedule the Veteran for a VA examination by an appropriate health care provider to determine whether the Veteran has a disability manifested by chest pain and, if so, to identify its etiology. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the examiner for review in conjunction with the opinion, and the examiner must specifically acknowledge receipt and review of these materials in any report generated. b. After reviewing the claims files and examining the Veteran, the examiner must provide an opinion on whether the Veteran currently has a disability manifested by chest pain, to include any gastrointestinal disability, that was incurred in or aggravated beyond normal progression by service. The examiner will specifically comment on the whether the April 1985 VA treatment report is indicative of a chronic post-service chest or gastrointestinal disability. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to make a determination without resorting to mere speculation, he/she must so state. d. If the examiner responds to the above inquiry that he/she cannot so opine without resort to speculation, the RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. The report prepared must be typed. 4. The AMC/RO must notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claim. The consequences for 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 of the aforementioned examinations, documentation will be obtained which shows that notice scheduling the examination was sent to the last known address. It will also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the AMC/RO will review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 6. The AMC/RO will also consider all of the evidence of record and re-adjudicate the Veteran's claim for service connection for a disability manifested by chest pain. If the benefit sought on appeal remains denied, the Veteran and his representative will be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 7. The AMC/RO must also issue a Statement of the Case and notification of the Veteran's appellate rights on the issue of entitlement to service connection for PTSD. 38 C.F.R. § 19.26 (2010). The Veteran is reminded that to vest the Board with jurisdiction over the issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2010). If the Veteran perfects the appeal as to this issue, and the issue continues to be denied, the case must be returned to the Board for appellate review. The Veteran 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 purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. 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 or by the Court 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). _________________________________________________ JOHN H. NILON 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) (2010).