Citation Nr: 1307280 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-36 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), anxiety, depression, a mood disorder, and a personality disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from November 25, 1974 to January 3, 1975 and he served on active duty in the United States Army from December 29, 1976 to May 18, 1977. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2010 rating decision of the VA Regional Office (RO) in Fort Harrison, Montana, which, inter alia, denied the Veteran's claim for service connection for an acquired psychiatric condition, to include PTSD, anxiety, and depression. The case has since been transferred to the RO in Sioux Falls, South Dakota. In June 2011, the Board re-characterized the Veteran's service connection claims for various psychiatric disorders into a single claim for an acquired psychiatric disability, to include PTSD, anxiety, depression, a mood disorder, and a personality disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (noting that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board then remand the issue to the RO (via the Appeals Management Center (AMC)) in order to afford the Veteran with a new VA examination. 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 June 2011, the Board previously remanded the Veteran's claim for service connection for an acquired psychiatric disability, to include PTSD, anxiety, depression, mood disorder, and a personality disorder, in order to provide him with a new VA psychiatric examination. The Veteran was scheduled for VA examinations in July 2011, but he failed to report. An August 2011 report of contact with the Veteran shows that the Veteran informed VA that it was difficult for him to receive notice and attend a scheduled VA examination, because he was homeless and he was unable to stay at the shelters for long periods of time. The Veteran was then informed that he would be rescheduled for another VA examination. He failed to report to a VA psychiatric examination scheduled in October 2011. Since then, in a January 2013 informal brief, the Veteran's representative reported that he had spoken with the Veteran and the Veteran had expressed his willingness to attend a VA examination, if it was rescheduled. The Veteran has requested that his VA examination be rescheduled. The Board notes that the Veteran has been homeless and it is difficult for him to receive notice of the scheduled VA examination prior to the date of examination as well as find transportation to the scheduled examination on the date of the examination. In light of the foregoing, the Board is of the opinion that the Veteran should be afforded another opportunity to report for an examination. See 38 C.F.R. § 3.655. The Board reminds the Veteran that he should keep VA apprised of any further changes in his address. Further, the Veteran should be advised that 38 C.F.R. § 3.655 states that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim or any other original claim, the claim shall be rated based on the evidence of record. If the Veteran again fails to attend the re-scheduled VA examination, without good cause, then the Board will have no discretion but to adjudicate the claim based on the evidence of record. Accordingly, the case is REMANDED for the following action: 1. VBA should schedule the Veteran for a psychological examination with a VA examiner of appropriate expertise, but not the examiner who conducted the December 2009 VA examination. VBA must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of the claim. VBA must also notify the Veteran that the consequences for failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). Following a review of this remand directive, a complete review of the Veteran's claims file, and examination of the Veteran, the examiner should provide an opinion whether the Veteran currently suffers from any acquired psychiatric disorders. The examiner's report must explicitly state that such review occurred. Any indicated studies should be performed, and the rationale for each opinion expressed must be provided. If it is determined that the Veteran does not suffer from any such acquired psychiatric disorders, the examiner must reconcile this opinion with the Veteran's previous diagnoses of an acquired psychiatric disability, to include PTSD, anxiety, depression, a mood disorder, and a personality disorder. Additionally, with regard to any currently diagnosed acquired psychiatric disorders, the examiner must: (a) Provide an opinion whether the Veteran's acquired psychiatric disability clearly and unmistakably existed prior to the Veteran's entrance into his honorable period of active duty from November 25, 1974 to January 3, 1975; (b) If the Veteran's acquired psychiatric disability did not clearly and unmistakably exist prior to his honorable period of active duty from November 25, 1974 to January 3, 1975, provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any acquired psychiatric disability originated during, or is etiologically related to, the Veteran's honorable period of active duty from November 25, 1974 to January 3, 1975? (c) If the Veteran's acquired psychiatric disability did clearly and unmistakably exist prior to his honorable period of active duty from November 25, 1974 to January 3, 1975, provide an opinion as to whether the disability clearly and unmistakably was not aggravated beyond the natural progression of the disability during the Veteran's honorable period of active duty from November 25, 1974 to January 3, 1975. The examiner must provide a detail explanation for any opinion proffered. If the examiner is unable to provide any opinion requested, the examiner must fully explain why such opinion could not be obtained. 2. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ DAVID L. WIGHT 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).