Citation Nr: 1316646 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 05-28 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from January 1992 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Little Rock, Arkansas, Regional Office (RO) of the United States Department of Veterans Affairs, which denied entitlement to service connection for PTSD and for paranoid schizophrenia. The September 2004 decision was itself a reconsideration of a December 2003 decision, based upon receipt of new and material evidence within a year of the initial denial. 38 C.F.R. § 3.156(b). In November 2007, January 2010, July 2011, and September 2012, the Board remanded the appeal for additional development. Further, in January 2010 the Board recharacterized the two issues certified on appeal as a single issue of service connection for an acquired psychiatric disorder. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009) The issue of the competence of the Veteran for VA purposes has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Most recently, in September 2012, the Board remanded the Veteran's appeal for further development in light of the revelation of a new, updated mailing address for the Veteran. For many years, correspondence to the Veteran had been returned as undeliverable, frustrating attempts to obtain relevant records and to notify him of necessary examination appointments. Importantly, while the Board and AMC had been using the updated address, the VA hospital responsible for scheduling the examinations, and which had certified his repeated failures to report, appeared to have been using the old address. The Board therefore remanded for, among other things, provision of a VA examination, in order to secure a VA medical opinion on any nexus between current diagnosis and service. The hospital was directed to utilize the updated mailing address. It appears that although the hospital was informed of the address change, it persisted in mailing notice of the Veteran's November 2012 examination to the old, incorrect address. Fortunately, the error was noticed, and in January 2013 the examination was rescheduled and notice was sent to the updated address. In March 2013, a supplemental statement of the case (SSOC) was issued which refers to a failure to report for "the" (singular) scheduled examination. There was no discussion of the confusion related to the addresses, or of the rescheduling. However, a review of the claims file, to include the electronic records maintained as part of the Virtual VA system, does not include any official certification of the Veteran's failure to report for the rescheduled examination. Only the failure on the first attempt is documented. Given the past confusion over achieving correct, effective notice to the Veteran, this lack of documentation prevents the Board from applying any presumption of regularity as to the scheduling, performance, and forwarding of VA examination reports. Complicating the matter is the fact that the SSOC sent to the Veteran appears to have been returned for unknown reasons. It is not stamped as undeliverable by the post office, but does appear to have perhaps been damaged in mailing. This SSOC, sent to the acknowledged correct address of record (which happens to be that of his father, his legally appointed guardian), would have afforded the Veteran notice of the failure to report and the consequences thereof. This would have provided him an opportunity to explain the failure or to request rescheduling, if warranted. As the "failsafe" notice of the failure to report is not shown to have been given, and the absence of effective delivery of the SSOC generally fails to provide required notice of the evidence, applicable law, and facts encountered since the prior AOJ consideration, remand is required. 38 C.F.R. §§ 19.37, 20.1304(c). On remand, official certification of the Veteran's failure to report for the February 2013 VA examination is required; rescheduling of such is not necessary at this time, as notice of the examination was sent to the correct address of record. Then, a new SSOC must be issued and sent to the Veteran at his official address. Accordingly, the case is REMANDED for the following action: 1. Contact the VA medical center in Little Rock, Arkansas, and obtain official certification regarding the Veteran's failure to report for a properly scheduled and noticed February 2013 mental disorders examination. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case, with mailing to the correct address of record verified, and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ S. S. TOTH 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).