Citation Nr: 1318532 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-13 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from September 1963 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision in which the above-referenced Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for depression. In June 2007, the Veteran testified at a hearing conducted at the RO, before a decision review officer. In December 2011, the Board issued a decision granting entitlement to service connection for depression, and essentially denying entitlement to service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the parties filed a joint motion for remand. By an August 2012 Order, the Court granted the joint motion for remand, thereby vacating the portion of the Board's December 2011 decision that denied service connection for PTSD, and remanding for compliance with the instructions in the joint motion. The portion of the Board's December 2011 decision that granted service connection for depression was not vacated. The Board notes that, because the issue currently on appeal has specifically been limited to entitlement to service connection for PTSD, and service connection for depression has already been granted, the Court's rationale in Clemons is not herein applicable. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In February 2013, the Board remanded the matter for further development in accordance with the directives in the parties' joint motion for remand. The case has been returned to the Board. However, the Board has determined substantial compliance with the Board's remand has not been satisfactorily accomplished. As such, another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As detailed in the prior remand, the Board instructed the RO/AMC to provide the Veteran with a VA examination pertaining to his claim for service connection for PTSD in order to satisfy VA's duty to assist in the development of the claim. Specifically, it was noted that, despite the fact that service connection for depression had been granted, the Court has recognized that separately diagnosed psychiatric conditions could be service-connected, but could not be separately rated unless they resulted in different manifestations and that potentially evidence could be received that reflected that the two conditions resulted in different manifestations, which could ultimately result in the two conditions being separated rated. 38 C.F.R. § 4.14 (2012); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). In response to the Board's remand, the RO/AMC sent the Veteran a letter dated on March 7, 2013, to an address in Chicago, Illinois. There is no indication that the letter was returned as undeliverable. A compensation and pension examination inquiry sheet on the same date showed that the Veteran had an address in Calumet City, Illinois. The Veteran failed to report to a VA examination scheduled for March 21, 2013. In an Appeal Action sheet dated April 8, 2013, it was noted that the Veteran's address was updated in SHARE to match CAPRI because the new address had been updated in CAPRI on April 2, 2013. The prior address was listed as the one in Chicago, Illinois; the new address was listed as the one in Calumet City, Illinois. An April 2013 supplemental statement of the case (SSOC) was mailed to the Veteran at the Calumet City, Illinois address. There is no indication that the letter was returned as undeliverable, and the Veteran has not notified the RO/AMC that there was good cause for him to miss the scheduled VA examination. Here, however, because a copy of the letter informing the Veteran of the date and time of the examination is not in the claims file, the Board has no way of ascertaining whether he was appropriately notified of the information at the correct mailing address. In light of this fact, the Board may not find that VA's duty to assist has been adequately met. See Kyhn v. Shinseki, 2013 WL 1846562 (C.A.Fed.) Therefore, another remand is necessary. The Veteran has the responsibility to report for any scheduled examination and to cooperate in the development of the case. 38 C.F.R. § 3.655 (2012); Wood v. Derwinski, 1 Vet. App. 190,193 (1991) (holding that the duty to assist is not always a one-way street and that if a veteran desires help with his claim he must cooperate with VA's efforts to assist him). The Veteran is responsible for keeping VA apprised of his whereabouts and for providing a current and accurate address. The Court has firmly held that there is no burden on VA to turn up heaven and earth to locate a veteran. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter pertaining to the issue of entitlement to service connection for PTSD. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any PTSD that he may have in accordance with the DSM-IV. Notice of the date and time of the examination must be sent to the most recent address of record for the Veteran in Calumet City, Illinois, unless he notifies VA that another address is correct. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should note that such review was accomplished. Any testing deemed necessary should also be accomplished. If the evaluation results in a diagnosis of PTSD in accordance with the DSM-IV, the examiner should state whether the Veteran's reported stressor of feeling racial discrimination in service is a sufficient stressor to support the diagnosis of PTSD. If a diagnosis of PTSD is not made, the examiner should explain in the examination report why such a diagnosis is not warranted. Also, the examiner should state whether the Veteran's reported stressor of feeling racially discriminated against in service is a sufficient stressor to have supported the diagnosis of PTSD made at various VA outpatient treatment sessions. See, e.g., October 2008 VA outpatient treatment record. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed. If any question cannot be answered without resorting to pure speculation, this should be stated, with an explanation as to why it is so 3. Then, readjudicate the claim for service connection for PTSD. If this benefit remains denied, the Veteran and his representative should be provided with an SSOC and given an opportunity to respond. The case should then be returned to the Board for further appellate review. The Veteran 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).