Citation Nr: 1300862 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 05-11 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. This matter was previously before the Board in August 2008 and May 2010 when the Board remanded the claim for further development. It was again before the Board in January 2011 when the Board denied the Veteran's claim. The Veteran appealed the Board's January 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 memorandum decision, the Court set aside the January 2011 Board decision and remanded the claim for further adjudication. Specifically, the Court held that the Board, in its January 2011 decision, failed to explain why the Veteran's assertion as to his inability to travel over 200 miles for a VA examination was, or was not, good cause for not reporting for a scheduled medical examination. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In August 2008, the Board remanded the Veteran's claim for the Veteran to be afforded a VA examination with a mental health clinician. A May 2009 report of contact reflects that the Veteran reported that he would not go to an examination. He further stated that his father had died at the VA facility. The Veteran was nevertheless scheduled for a VA examination. In May 2009 correspondence, the Veteran asserted that his father was murdered at the VA medical center (VAMC). He further stated "I hope you can understand why I am not going to the V.A. facility for a V.A. exam." He further stated that he could not show up at the VAMC Iron Mountain, Michigan due to his father's murder there. In May 2010, the Board remanded the Veteran's claim for him to be provided with a VA examination at a facility other than the Iron Mountain, Michigan VAMC. The Veteran was scheduled for a VA examination for June 2010 at the Clement J. Zablocki Medical Center. In correspondence dated in May 2010, the Veteran requested that an examination be performed "within a few miles" of his home and alleged that traveling in an automobile causes migraine headaches and back pain. In correspondence dated in June 2010, and received by VA in July 2010, the Veteran stated that he would not report for the examination because he had degenerative arthritis of the spine which makes it "impossible for [him] to travel over 30 miles". He further reported that "traveling in an automobile over 30 miles brings on severe back pain and sets of debilitating migraine headaches." In this regard, the Board notes that a June 1987 private record reflects that the Veteran has a diagnosis of mild degenerative changes of the lower cervical spine. An October 1993 VA examination report reflects that the Veteran reported severe headaches once a week. In August 2010 correspondence, VA informed the Veteran that failure to report for an examination without good cause may result in a denial of his claim. In correspondence dated in August 2011, the Veteran stated that "due to my father's murder in the Iron Mountain Mi. VA hospital, I have been advised by Law enforcement, attorney, state and federal officials to stay of out Federal Medical Facilities until the mater [sic] with my father [name] is resolved." There is no objective evidence of record which reflects that the Veteran has been informed to stay out of federal medical facilities or that his father's death in 1995 is still being investigated. (An October 1995 police report reflects that the Veteran's father's death investigation was closed.) Nevertheless, based on the Veteran's contentions, the Board finds that, if it is reasonably possible to accommodate the Veteran, he should be afforded one more opportunity to report for an examination. The Board is mindful that the Veteran has stated that he cannot go to the Iron Mountain Michigan VAMC, cannot go to a facility more than 30 miles from his home, and cannot go to "Federal Medical Facilities." With these allegations in mind, the RO should attempt, within reason, to schedule the Veteran for another examination, either at a VA facility to which the Veteran will agree to go, by way of a fee based examiner, or by videoconference/Telehealth if appropriate. Accordingly, the case is REMANDED for the following action: 1. Determine if the Veteran is willingly to attend an examination at any VA facility; if so, schedule him for a mental health examination at such facility. If the Veteran is unwillingly to attend an examination at a VA facility due to his father's death at a VA facility and/or due to his back symptoms, reasonably attempt to have him examined on a fee-basis contractual arrangement within approximately 30 miles of his home. If such an examination is not feasible, reasonably attempt to have the Veteran examined through videoconference or Telehealth. If any such an examination is not feasible, the RO should document what specific efforts were made to enable such an examination to be conducted and the reasons why the Veteran contends that he could not attend. If an examination is conducted, the examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric disability causally related to active service. The claims folder should be reviewed in conjunction with such examination and the examination report should indicate that such a review was performed. All opinions expressed should be accompanied by complete rationales. 2. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. 2012). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).