Citation Nr: 1302582 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 07-32 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from September 1967 to December 1968. The Veteran was awarded a Purple Heart and the Vietnam Service Medal, among other distinctions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Jackson, Mississippi. This matter was previously before the Board in July 2010 and April 2012 at which time it was remanded for additional development. It is now returned to the Board. The Veteran was scheduled for a hearing before a Veteran's Law Judge at the RO in Jackson, Mississippi in September 2009. However, prior to the date of his scheduled hearing, the Veteran notified VA of his desire to withdraw his requested hearing. The Board notes that the Veteran had been represented by the Paralyzed Veterans of America (PVA) throughout much of the appeal period. However, in May 2009, PVA notified VA that they would no longer be able to represent the Veteran. To date, the Veteran has not appointed any other attorney or Veterans Service Agency as his representative. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they include additional VA outpatient treatment records for the Veteran dated through March 2012. There are also additional records that are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. In its April 2012 Remand, the Board referenced a March 1987 VA outpatient treatment record in which the Veteran was found to meet the criteria for a diagnosis of PTSD. An August 1988 VA treatment record had shown that the Veteran suffered from minor persecutory delusions and some hallucinations in the form of fixed scenes from Vietnam, however, PTSD was not diagnosed. An August 2006 VA aid and attendance examination report had shown that PTSD was one of the Veteran's disorders. A June 2008 VA outpatient treatment record had noted that the Veteran had some subthreshold symptoms of PTSD. The Board considered a December 2006 VA PTSD examination report which had shown that the Veteran suffered from a mood disorder due to his general medical condition (traumatic brain injury), but that he did not meet the full DSM-IV criteria for PTSD. However, the Board determined that this medical opinion was of limited probative value, as it had not contemplated the March 1987 medical record in which the Veteran was found to meet the criteria for a diagnosis of PTSD. As such, the Board remanded this matter so that the Veteran could be scheduled for a VA examination so as to determine whether he suffered from any psychiatric disorder (to include PTSD) that was separate and distinct from his already service-connected mood disorder, that manifested during, or as a result of, military service. The Veteran was scheduled for a VA examination in April 2012. A review of the VA examination report reveals that the VA examiner indicated that "the Veteran became mildly agitated during the examination and refused to answer 'any more questions about the war,' so that the examination could not be completed. Therefore no diagnoses can be made without resorting to speculation. He should be re-scheduled for another examination." Thereafter, VA individual treatment notes of the Veteran found on Virtual VA, dated from November 2010 to March 2012, show that the Veteran was given an impression of PTSD by a VA Social Worker. Generally, VA's duty to assist with the development of facts pertinent to a claim is not a "one-way street." See Wood v. Derwinski, 1 Vet. App. 190 (1991). It is the Veteran's responsibility to report for any scheduled VA examination and to cooperate in the development of his case. The consequences of failing to report or cooperate for a VA examination without good cause may include denial of the claim. See generally, 38 C.F.R. §§ 3.158 and 3.655 (2012). The Board, however, finds that as the nature of the Veteran's disability may have contributed to his inability to participate in the April 2012 VA examination, and given the examiner's suggestion that the Veteran should be rescheduled for an additional examination, the Board finds that an additional effort should be undertaken to have the Veteran complete the requested examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran for a VA examination before an appropriate specialist that has not previously examiner the Veteran so as to assess the nature and etiology of his asserted PTSD. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination. The examiner is asked to perform all necessary tests and studies, and opine as to whether the Veteran suffers from any psychiatric disorder (to include PTSD) that is separate and distinct from his already service-connected mood disorder, that manifested during, or as a result of, military service. The Board notes that the Veteran's exposure to in-service combat and injury is not in question. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran is hereby notified that it is his responsibility to report for the examination(s) scheduled in connection with this REMAND and to cooperate in the development of his case. Failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ J.A. MARKEY 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).