Citation Nr: 1312890	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  10-03 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in North Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence to reopen a service connection claim for posttraumatic stress disorder (PTSD) has been received.

2.  Entitlement to service connection for an acquired psychiatric disability, to include PTSD.

3.  Entitlement to service connection for degenerative disc disease, to include arthropathy of the left S-1 vertebrae, also characterized as a low back disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States




WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran served on active duty from August 1993 to September 1997.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision in which the RO, inter alia, reopened but denied a claim for service connection for PTSD; as well as denied a claim for service connection for low back disability.  In January 2009, the Veteran filed a notice of disagreement.  A statement of the case (SOC) was issued in January 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010.

Regarding characterization of the appeal, the Board notes that, regardless of the RO's actions, it has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection.  That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claim has been received,; the Board has listed the request to reopen the claim for service connection as an issue on appeal.  Also, given the favorable disposition of the request to reopen, and other psychiatric diagnoses of record (as discussed below), the Board has characterized the reopened claim as one for any psychiatric disability, to include PTSD (as reflected on the title page).

In January 2013, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.  During the hearing, the Veteran was granted a 60-day abeyance period to submit additional evidence.  In March 2013, the Veteran submitted additional evidence, along with a waiver of the Veteran's right to have this evidence initially considered by the RO.  See 38 C.F.R. §§ 20.800, 20.1304 (2012).

A March 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Board's decision reopening the claim for service connection for PTSD is set forth below.  The claim for service connection for an acquired psychiatric disability to include PTSD, on the merits, as well as degenerative disc disease, to include arthropathy of the left S-1 vertebrae, also characterized as a low back disability, is addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran when further action, on his part, is required.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  In a May 2004 rating decision, the RO denied service connection for PTSD; although notified of the denial and of his appellate rights in a letter that same month, the Veteran did not initiate an appeal of that decision. 

3.  The Veteran filed a request to reopen the claim for service connection for PTSD in August 2008.  

4.  Additional evidence associated with the claims file since the May 2004 rating decision (but outside the appeal period), is not cumulative and redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The May 2004 rating decision in which the RO denied the claim for service connection for PTSD is final.  38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

2.  As pertinent evidence received since the May 2004 denial is new and material, the criteria for reopening the claim for service connection for PTSD are met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012) (as in effect for claims filed on and after August 29, 2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  

Given the favorable disposition of the request to reopen, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished.  

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred.  38 C.F.R. § 3.304(f).

The Veteran's claim for service connection for PTSD was originally denied in a May 2004 rating action based on a finding that there was no evidence of an in-service stressor.  The evidence of record at the time essentially consisted of the Veteran's claim for PTSD; VA treatment records dated in 2003 that show psychiatric diagnoses to include psychotic disorder, depression, PTSD, and alcohol and marijuana abuse; and service treatment records, to include the report of a March 1997 psychiatric evaluation that documents the Veteran was treated as an in-patient in service in 1995 for adjustment disorder related to family issues.

Although notified of the denial of the claim and of his appellate rights in a May 2004 letter, the Veteran did not initiate an appeal of the May 2004 RO decision.  See 38 C.F.R. § 20.200.  The RO's May 2004 denial of the claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  

Relevant to the finality determination, the Board acknowledges that if additional evidence is submitted by the Veteran within one year of the May 2004 letter notifying the Veteran of the RO's decision, then the March 2004 decision would not be final.  See Bond v. Shinseki, 659 F.3d 1362 (2011) (holding that when considering finality, 38 C.F.R. § 3.156(b) requires VA to evaluate submissions received during the relevant appeal period to determine whether they pertain to the adjudicated, rather than a new, claim).  As the Veteran did not submit any additional evidence during such time period, new and material evidence to reopen the claim is still required.

The Board also notes that VA regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence).  The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records.  38 C.F.R. 
§ 3.156(c)(1)(i).  As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial.  Rather, the claim is simply reviewed on a de novo basis.  

In the instant case, the Board notes that the Veteran's service treatment in-patient psychiatric clinical records for adjustment disorder with depressed mood were received in October 2010.  The Board finds that while the in-patient clinical records were not physically associated with the claims file at the time of the May 2004 rating decision, the records are not considered relevant.  As noted above, the Veteran's in-patient treatment was referred to in a March 1997 psychiatric evaluation that was included in the Veteran's service treatment records which were of record at the time of the May 2004 rating decision.  Additionally, the Board finds that the records have no bearing on the previously-denied PTSD claim.  The in-patient treatment records do not reference PTSD or any identified in-service stressor.  Indeed, medical care givers, and the Veteran, related the adjustment disorder to personal family issues.  Therefore, as no additional relevant official service department records were received, the provisions of 38 C.F.R. § 3.156(c) are inapplicable to the present claim.

The Veteran sought to reopen the previously denied claim for service connection in August 2008.  Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.  

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  Here, the last (and only)  final denial of the claim is the May 2004 rating decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  
Here, additional evidence has been associated with the claims file since May 2004 that pertains to the Veteran's PTSD claim.  In this regard, the Veteran essentially testified that while he was stationed at the embassy compound in Liberia, the embassy came under attack.  Furthermore, records, to include a March 2009 VA mental health discharge record, indicate that the Veteran has a history of PTSD (although PTSD was not clinically diagnosed at that time).  

Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted.  See Molloy v. Brown, 9 Vet. App. 513 (1996).  Further, the Court has recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court emphasizes that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Id.  

Essentially, the aforementioned new evidence added to the record pertains to the material issue of whether the Veteran experienced an in-service stressor, and reflects that evidence potentially addressing the missing element of an in-service stressor has been submitted.  In accordance with the aforementioned Court decisions, as evidence raising a reasonable possibility of substantiating the element of current disability has now been added to the claims file, the claim must be reopened.  

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for PTSD, are met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.   


ORDER

As new and material evidence to reopen the claim for service connection for PTSD, has been received, to this limited extent, the appeal is granted.



REMAND

The Board's review of the claims file reveals that further RO action in this appeal is warranted.

As discussed above, the Board has reopened the Veteran's previously-denied claim for service connection for PTSD.  However, given other psychiatric diagnoses of record-specifically, adjustment disorder with depressed mood, and depressive disorder-the Board has recharacterized the reopened claim as one for service connection for acquired psychiatric disability to include PTSD, consistent with . Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The RO should consider the expanded claim, in the first instance.  The Board also finds that additional development of the psychiatric and low back disability claims is warranted.

As regards psychiatric disability, as noted above, service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f) (2012).  

Under the legal authority in effect at the time the Veteran filed his request to reopen, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD varied depending upon whether a Veteran engaged in "combat with the enemy."  See Gaines v. West, 11 Vet. App. 353, 359 (1998).  If VA determined that a Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service."  See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  

However, on July 13, 2010, VA published a final rule that amended its adjudication regulation governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor.  See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010).  The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board.  

The revisions add to the circumstances under which VA will accept credible lay testimony, alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the Veteran's account.  The July 2010 amendment of 38 CFR § 3.304(f) eliminates the requirement for evidence corroborating the occurrence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity."  The new regulatory provision requires that a VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and that the Veteran's symptoms are related to the claimed stressor.

In this case, the evidence currently of record does not reflect that the Veteran engaged in combat.  In this regard, the Veteran's Form DD-214 noted that the Veteran's military occupational specialties (MOS) included a field radio operator.  Additionally, he did not receive any medals indicative of combat.  However, the Veteran has alleged that he participated in combat operations in conjunction with Operation Assured Response in Monrovia, Liberia during 1996.  Specifically, he indicated that the embassy compound where he was located came under attack first; and then he was dispatched with a unit to further assess damage, and as they were returning to their truck, the unit came under attack.  The Veteran's personnel records indicate that he participated in Operation Assured Response in Monrovia, Liberia from April 1996 to June 1996 as part of "BLT 2/2 22D MEU JTF Assured response".  

The Board is aware that an August 1997 personnel record documents that the Combat Action Ribbon (CAR) was awarded to personnel that participated in combat missions in conjunction with Operation Assured Response on April 30 and May 6 1996.  The document also notes that the CAR was not awarded to individuals (to include the Veteran) who were at the embassy compound on May 18, 1996.  While the RO acknowledged the August 1997 record, and denied the Veteran's claim due to the fact that he was disapproved for the CAR, to date, there is no indication that the RO attempted to verify his reports of being subject to any additional attacks on the embassy compound.  Such could potentially provide information concerning whether the Veteran's unit participated in any other combat operations and/or whether members of the Veteran's unit were displaced to support combat operations. 

Accordingly, the RO should undertake any necessary development to attempt to verify the Veteran's alleged participation in combat during Operation Assured Response, to specifically include through the U.S. Army Joint Services and Records Research Center (JSRRC) and any other source(s), as appropriate.  In particular, the RO should attempt to obtain/research histories for the Veteran's assigned unit in Monrovia, Liberia from April 1996 to June 1996.  Any additional action necessary for independent verification of the Veteran's alleged combat service, or of any reported verifiable stressor(s), to include follow-up action requested by the contacted entity, should be accomplished.  If the search for corroborating evidence leads to negative results, the RO should notify the Veteran of this fact, explaining the efforts taken, and describing further action (if any) to be taken. 

Additionally, the Board notes that on February 2011 VA examination, the examiner noted that PTSD was not found.  However, during the January 2013 Board hearing, the Veteran testified that he was about to start PTSD treatment to deal with the incident he experienced during service.  See Transcript, page 13.  He also indicated that he had been treated for his psychiatric disability at the VA Medical Center (VAMC) in Loma Linda in the late 1990's.  See page 16 of the hearing transcript.  A review of the Veteran's claims file, to include his Virtual VA electronic file reflects VA treatment records dated from September 2003 through November 2012.  

The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the RO should obtain from the Loma Linda VAMC and any associated facilities all outstanding records of VA treatment and/or evaluation of the Veteran from the late 1990's (1998 and 1999) as well as from December 2012 to the present.

Furthermore, in the event that the RO determines that the record establishes that the Veteran had combat service, to which an identifiable stressor is related, or the occurrence of an in-service stressor is verified, the RO should arrange for the Veteran to undergo another VA examination, by a psychiatrist or psychologist, at an appropriate VA medical facility, to obtain medical opinion as to whether he currently has PTSD as a result of any combat action/verified stressor.  Regardless, the VA examiner should opine whether any diagnosed psychiatric disability other than PTSD is related to the Veteran's military service, to include psychiatric complaints noted therein.

Specifically as regards the Veteran's low back disability claim, the Board notes that additional evidence, since his most recent November 2009 VA examination, has been received.  Of particular, is a September 2012 private medical record that documents the Veteran's three level disc disease with ongoing S-I joint pain.  On the November 2009 VA examination, the examiner diagnosed arthropathy, left sacroiliac joint of lumbar spine and opined that this disability was not related to the back complaints noted in service.  

In light of the fact that the private treatment records were received after the November 2011 VA examination, and the VA examiner was not able to review all the medical evidence of record, to include the degenerative disc disease diagnosis and whether his degenerative disc disease of the lumbosacral spine was related to service, the Board finds that the VA opinion is inadequate.  As such, further medical opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve this claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Hence, the RO should obtain a supplemental opinion, if possible, by the November 2011 VA examiner.  The RO should arrange for the Veteran to undergo further examination only if the November 2011 VA examiner is unavailable, or another examination of the Veteran is deemed warranted.

The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of one or both claim(s).  See 38 C.F.R. § 3.655(a), (b) (2012).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility.

Finally, while these matters are on remand, to ensure that all due process requirements are met, and that the record is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims for service connection on appeal, explaining that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).  The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any relevant, outstanding private medical records.  The RO should also give the Veteran notice of what is needed to support a claim for PTSD under the revised version of 38 C.F.R. § 3.304(f). 

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012).

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims for service connection on appeal.  The RO's adjudication of both claims should include consideration of all evidence added to the claims file since the RO's last adjudication-to include, for the sake of efficiency, evidence submitted directly to the Board (notwithstanding the waiver of initial RO consideration).

Accordingly, these matters are hereby REMANDED for the following actions:

1.  Obtain from the Loma Linda VAMC all outstanding, pertinent records of mental health and physical evaluation and/or treatment of the Veteran dated in the late 1990s (1998- 1999); and from December 2012 to the present.  The RO must follow the procedures set forth in 38 C.F.R.  § 3.159(c) as regards requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

2.  Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims for service connection that is not currently of record.  Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records.

Provide notice to the Veteran of what is needed to establish service connection for PTSD under the revised version of  38 C.F.R. § 3.304(f).

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

3.  If the Veteran responds, assist him in obtaining all identified outstanding, pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159.  All records and responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  Undertake necessary action, to particularly include contact with the U.S. Army and Joint Services Records Research Center (JSRRC) (and other appropriate source(s)), to attempt to independently verify whether or not the Veteran participated in combat operations while serving with the 22nd Marine Expeditionary Unit in Monrovia, Liberia from April 1996 to June 1996; and any other alleged stressors (including whether he was exposed to firefights and attacks) for which the expanded record contains sufficient information to allow for independent verification.

Specifically, obtain or request a search of the Veteran's unit histories for April 1996 to June 1996.  Any additional action necessary to verify the Veteran's combat service, or to verify a reported in-service stressor, to include follow-up action requested by the contacted entity, should be accomplished.  If the search for corroborating records leads to negative results, notify the Veteran and afford him the opportunity to respond.  Also follow up on any additional action suggested by JSRRC.

5.  After all records and/or responses received have been associated with the claims file, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at an appropriate VA medical facility.  

The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All necessary tests and studies (to include psychological testing) should be accomplished (with all findings made available to the psychiatrist or psychologist prior to the completion of his/her report), and all clinical findings should be reported in detail.

Based on examination of the Veteran, any testing results, and consideration of his documented history and assertions, the examiner should clearly indicate whether  the Veteran meets criteria for a diagnosis of PTSD.  In rendering such determination, the examiner is instructed that only (an) in-service stressful event(s) associated with established combat service or the Veteran's fear of hostile military or terrorist activity, or a verified, in-service stressor, may be considered for the purpose of determining whether exposure to such in-service event(s) has have/resulted in PTSD.  

If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the established stressor(s).  

With respect to any diagnosed psychiatric disability/ies other than PTSD-to include depressive disorder-for  each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service-to include psychiatric complaints noted therein. 

The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report.

6.  Also after all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND and printed paper copies of all evidence relevant to the examiner's review (if the examiner does not have access to the appellant's electronic (Virtual VA) file), to the November 2011 VA spine examiner for an addendum opinion. 

With respect to diagnosed degenerative disc disease of the lumbar spine previously assessed as arthropathy, left sacroiliac joint of the lumbar spine, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include injury/complaints therein. 

In rendering the requested opinions, the physician should consider and discuss all pertinent medical and lay evidence, to include the Veteran's service treatment records, the September 2012 private medical records, and pertinent lay assertions.  

If the examiner who provided the November 2011 opinion is unavailable or another examination of the Veteran is deemed warranted, arrange for examination of the Veteran, by an appropriate physician, to obtain an opinion with respect to  currently diagnosed lumbar disability consistent with the questions and comments noted above.  

In such event, the entire claims file, to include a complete copy of this REMAND must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail.

The physician should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report.

7.  If the Veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility.

8.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

9.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims for service connection for an acquired psychiatric disability, to include PTSD, and for a low back disability. 

If the Veteran fails, without good cause, to report to the mental disorder examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate.

Otherwise, adjudicate each claim for service connection in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication (and legal authority).

10.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied.  The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369(1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).


______________________________________________
JACQUELINE E. MONROE 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs