Citation Nr: 1306933 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 00-20 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2009, the Board denied the Veteran's claim for service connection for PTSD and remanded a claim for entitlement to service connection for an acquired psychiatric disability other than PTSD. The Veteran appealed the Board's denial of service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court). In a September 2010 Order, the Court granted a Joint Motion for Remand and remanded the claim for service connection for PTSD to the Board. In July 2011, the Board consolidated and denied the claims for service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the Board's denial to the Court. In an August 2012 order, the Court granted a Joint Motion for Remand and remanded the claim. The case has returned to the Board for appellate review. 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 In the August 2012 joint motion for remand, the parties determined that the August 2009 VA compensation and pension examination for the Veteran's claimed PTSD is inadequate because it is internally inconsistent, as well as insufficient to rebut the presumption of soundness. Thus, the Board must remand this matter for compliance with the Court's August 2012 order granting the parties' joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Consequently, the Veteran should be scheduled for a new examination of her claimed acquired psychiatric disorder, to include PTSD. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Additionally, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated her for her claimed acquired psychiatric disorder, to include PTSD, since service. Thereafter, any identified records, to include those from the Nashville, Tennessee VA Medical Center dated from January 2011 to the present that are not already included in the claims file should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated her for her claimed acquired psychiatric disorder, to include PTSD, since service. After securing any necessary authorization from her, obtain all identified treatment records which are not already of record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Regardless of the response, obtain records pertaining to any treatment the Veteran received for an acquired psychiatric disorder, to include PTSD, from all treating VA facilities since January 2011. 2. The RO should notify the Veteran that she may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining the records described above, the Veteran should be scheduled for an appropriate VA examination of her claimed acquired psychiatric disorder, to include PTSD. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, should be made available for review of the Veteran's pertinent medical history. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's claimed acquired psychiatric disorder, to include PTSD, resulted from the Veteran's military service. If the examiner determines that the Veteran's acquired psychiatric disorder does not result from the Veteran's military service, then the examiner should also state the likelihood that an acquired psychiatric disorder, to include PTSD, existed prior to service. Specifically, the examiner must determine if the disability clearly and unmistakably existed prior to service. If the examiner concludes that such disability existed prior to service, the examiner should indicate whether the disability clearly and unmistakably was not aggravated during service. In offering any opinion, the examiner should consider the full record, including the following pertinent documents: August 2009 and March 1999 VA PTSD examination reports; an August 1999 letter signed by a psychologist and the Chief of the Psychology Service at the Fort Campbell, Kentucky United States Army Medical Department; July 1998 letters written by the Veteran and her friend; and VA treatment records dated April 1997. The rationale for any opinion offered should be provided. If the examiner is unable to render an opinion without a resort to speculation, then the examiner must explain why this is so. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. N. HYLAND Acting 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).