Citation Nr: 1319043 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-40 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a right ankle disorder. 2. Whether new and material evidence has been received to reopen service connection for a right knee disorder. 3. Whether new and material evidence has been received to reopen service connection for a right hip disorder. 4. Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 5. Entitlement to a higher initial rating for traumatic brain injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from December 1962 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 and April 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. As will be explained below, new and material evidence has been received to reopen the Veteran's previously denied claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD. Further development of the evidence is required before the Board can adjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD. In addition, the issue of entitlement to an higher initial rating for the service-connected traumatic brain injury (TBI) is being remanded for the issuance of a statement of the case. As such, these issues are REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. An August 1987 rating decision denied service connection for a right ankle disorder and right knee disorder on the basis that the evidence did not demonstrate that the Veteran had right ankle and right knee injuries or diseases in service or at separation from service. 2. An April 1995 rating decision denied service connection for a right hip disorder on the basis that there was no evidence of record showing that the Veteran had a right hip injury or disease in service or at separation from service, or a current chronic right hip disorder 3. A December 2003 rating decision denied the Veteran's petition to reopen service connection for an acquired psychiatric disorder on the basis that there was no evidence of record showing that the Veteran had symptoms or a diagnosis of an acquired psychiatric disorder in or after service; the RO also noted that there was also no evidence of a claimed stressor or confirmed diagnosis of PTSD. 4. The additional evidence received since the August 1987 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection of a right ankle disorder. 5. The additional evidence received since the August 1987 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection of a right knee disorder. 6. The additional evidence received since the April 1995 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection of a right hip disorder. 7. The additional evidence received since the December 2003 rating decision raises a reasonable possibility of substantiating the claim for service connection of an acquired psychiatric disorder, including PTSD. CONCLUSIONS OF LAW 1. The August 1987 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The April 1995 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 3. The December 2003 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 4. New and material evidence has not been received to reopen service connection for a right ankle disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. New and material evidence has not been received to reopen service connection for a right knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. New and material evidence has not been received to reopen service connection for a right hip disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 7. New and material evidence has been received to reopen service connection for an acquired psychiatric disorder, including PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In addition, in Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the CAVC held that, in the context of an application for reopening, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The CAVC elaborated that VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided notice in June 2006, December 2006, and March 2011 regarding the date (in August 1987, April 1995, and December 2003) and bases of the previous denials of the claims for service connection for a right ankle disorder, right knee disorder, right hip disorder, and acquired psychiatric shoulder, including PTSD. The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claims; therefore, the letters provided the new and material evidence notice required by the Kent decision. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's service treatment records and reports of private and VA post-service treatment, as well as the Veteran's own statements in support of his claims. The Veteran was examined by VA in connection with his claims in June 2009 and August 2012. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues before the Board; the examination report contains all the relevant findings, including history of injury and symptoms, clinical examination finding, diagnosis, and an etiology opinion for the disability found. With regard to the petitions to reopen service connection for the right ankle disorder, right knee disorder, and right hip disorder, the August 2012 VA examiners offered an opinion as to etiology of the diagnosed disabilities, and supported the opinions with a rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that the examinations as to the right ankle, knee, and hip disorders are inadequate to decide the current claims, so they are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria to Reopen Service Connection In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision makers. "Material" evidence means existing 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 prior 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). The CAVC has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized 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." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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 as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis of Reopening Service Connection for Right Ankle, Right Knee, and Right Hip Disorders The Veteran's claims for service connection for a right ankle disorder and a right knee disorder was denied in an August 1987 rating decision on the basis that there was no evidence indicating that the Veteran had right ankle or right knee complaints, treatment, or diagnoses during his military service. The RO found that there was no evidence establishing chronic right ankle and knee disorders that were incurred in or aggravated by active military service. The Veteran's claim for a right hip disorder was denied in an April 1995 rating decision on the basis that there was no evidence of a right hip injury or disease in service or at separation, and no evidence establishing a chronic right hip disorder, including a hip injury or disease. The Veteran was notified of the August 1987 and April 1995 decisions by letters dated in August 1987 and April 1995, respectively. He did not submit a notice of disagreement, and no evidence was received within the year following those letters such that the provisions of 38 C.F.R. § 3.156(b) would apply; therefore, the August 1987 and April 1995 rating decisions became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In March 2006, the Veteran filed an application to reopen service connection for right hip and knee disorders; he filed an application to reopen service connection for a right ankle disorder in January 2011. Generally, it is appropriate for the Board to consider the claims as requests to reopen the previously denied claim rather than an original claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). Since the RO's August 1987 and April 1995 decisions, the Veteran has submitted additional evidence in support of his petitions to reopen. In several statements, the Veteran asserts that his right ankle, knee, and hip disorders are related to his service; he claims that he injured them when he fell off a bunk on a submarine in service. Likewise, statements from the Veteran reiterate his complaints of ongoing right ankle, knee, and hip pain since his service. The Veteran was provided VA examinations in August 2012; VA and private treatment records also have been submitted. In statements, the Veteran's fellow shipmates and Captain confirm that the Veteran's submarine, the USS Bugara, was hit by an exercise torpedo as asserted by the Veteran; the shipmates and Captain do not recall the Veteran being injured as a result of the incident, but nonetheless confirm the submarine's grounding/collision. The medical evidence added to the record since August 1987 and April 1995 is new because it had not previously been submitted; however, it is not material because the evidence does not relate to an unestablished fact necessary to substantiate the claims as the evidence does not relate the current right ankle, knee, and hip disorders to service. To the contrary, the August 2012 VA examination report indicates that the Veteran's current right ankle, knee, and hip disorder had onset in 2012 (ankle and knee) and 2005 (hip); the VA examiner noted that the Veteran's recently diagnosed right ankle, knee, and hip disorders (tarsal tunnel syndrome of the right ankle, bursitis of the right knee, and piriformis syndrome of the right hip) are not likely related to the Veteran's service, as the evidence does not demonstrate continuing ankle, knee, or hip complaints since service. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). The additional lay statements of the service shipmates and Captain while new, are not material, as they indicate that an incident occurred but did not provide new evidence regarding the claimed injuries of the ankle, knee or hip. Therefore the evidence does not relate to an unestablished fact necessary to substantiate the claims. Additionally, VA treatment records and statements from the Veteran shows that the Veteran has current right ankle, knee, and hip complaints and diagnoses, but otherwise contain no information demonstrating that the Veteran's current right ankle, knee, and hip are causally or etiologically related to his military service, or the events therein. This evidence is while new, is not material, as the evidence does not relate to an unestablished fact necessary to substantiate the claims. The Veteran's statements reiterate his previous contentions made for service connection and, thus, constitute cumulative evidence. The Veteran's current claims involving right ankle, knee, and hip disorders are grounded upon the same factual bases as his prior claims, which were previously denied by the RO in August 1987 and April 1995 rating decisions. As such, the Veteran's own statements concerning his claims are cumulative of those that were before the RO in August 1987 and April 1995. For these reasons, the Board finds that new and material evidence to reopen service connection for right ankle, knee, and hip disorders has not been received subsequent to the last final RO decision in August 1987 and April 1995. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As such, the Veteran's claims for right ankle, knee, and hip disorders are not reopened. Analysis of Reopening Service Connection for an Acquired Psychiatric Disorder The Veteran's claim for service connection for an acquired psychiatric disorder, including PTSD, was originally denied in an April 1995 rating decision on the basis that the evidence of record did not demonstrate that the Veteran had PTSD or exposure to stressors during service; the RO noted Veteran failed to submit a completed PTSD questionnaire for purposes of stressor verification and failed to report for a scheduled VA examination and social industrial survey. The RO most recently denied the Veteran's petition to reopen his claim for an acquired psychiatric disorder, including PTSD, in December 2003 on the basis that there was no evidence indicating that the Veteran had treatment for, complaints, or diagnoses of a psychiatric disorder, including PTSD, during or within one year of service; the RO also found that there was no evidence of a diagnosis of PTSD related to a confirmed stressor event during service. The RO acknowledged that the Veteran had a diagnosis of PTSD-like symptoms, but no actual diagnosis of PTSD. The Veteran was notified of the December 2003 decision by a letter dated in January 2004. He did not submit a notice of disagreement, and no evidence was received within the year following that letter such that the provisions of 38 C.F.R. § 3.156(b) would apply; therefore, the December 2003 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In March 2006, the Veteran filed an application to reopen service connection for an acquired psychiatric disorder, including PTSD. Since the RO's December 2003 decision, the Veteran has submitted additional evidence in support of his petition to reopen service connection for an acquired psychiatric disorder, including PTSD. In statements, the Veteran's fellow shipmates and Captain confirm that the Veteran's submarine, the USS Bugara, was hit by an exercise torpedo as asserted by the Veteran; the shipmates and Captain do not recall the Veteran being injured as a result of the incident, but nonetheless confirm the submarine's grounding/collision. Likewise, statements from the Veteran assert that he has received psychiatric treatment since service. The Veteran was provided VA examinations in June 2009 and August 2012; VA treatment records and a letter from his treating provider have also been submitted. The evidence added to the record since December 2003 is new because it had not previously been submitted; additionally, it is material because the evidence could reasonably substantiate the claim were it to be reopened as the evidence indicates that the Veteran currently has an acquired psychiatric disorder. In particular, the June 2009 VA examination report indicates that the Veteran has symptoms of depression, polysubstance abuse in remission, and schizoaffective disorder by history; the VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. The August 2012 VA examiner found that the Veteran had schizoaffective disorder which was not related to the Veteran's service, and that the Veteran did not meet the diagnostic criteria for PTSD. An associated traumatic brain injury (TBI) VA examination report opined that the Veteran's cognitive complaints were related to psychiatric disease. In an August 2012 letter, the Veteran's treating VA social worker opined that the Veteran met the criteria for PTSD, which was due to his military service. For purposes of establishing whether new and material evidence has been received, the credibility of the evidence, and not its weight, is to be presumed. See Justus, 3 Vet. App. at 513. Because the Veteran's statements and those of his shipmates, regarding an in-service stressor, are not shown to be inherently false, they are presumed credible for the limited purpose of reopening the claim; similarly, the Veteran's statements regarding post-service symptoms, treatment, and diagnosis of an acquired psychiatric disorder, including PTSD, are credible. Such lay evidence is not competent on the element of current an acquired psychiatric disorder, including PTSD; however, lay persons are competent to relate a contemporaneous diagnosis of an acquired psychiatric disorder, including PTSD. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, the August 2012 VA examination reports and the aforementioned letter from the Veteran's VA social worker provide a recent diagnosis, not previously of record, of a current acquired psychiatric disability, including PTSD. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (where the Federal Circuit Court noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim). Given this, and particularly in view of the Court's holding in Shade, the Board finds that the contentions by the Veteran, as well as by his fellow shipmates, represent evidence of a possible event in service, which, in combination with the recent diagnoses of schizoaffective disorder and PTSD, are sufficient to reopen the previously denied claim. As such, the additional evidence, considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder, including PTSD. In conclusion, the Board finds that new and material evidence has been received to reopen service connection for an acquired psychiatric disorder, including PTSD. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER The appeal to reopen service connection for a right ankle disorder is denied. The appeal to reopen service connection for a right knee disorder is denied. The appeal to reopen service connection for a right hip disorder is denied. New and material evidence having been received, the appeal to reopen service connection for an acquired psychiatric disorder, including PTSD, is granted. REMAND VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. An additional VA examination and medical opinion on the issue of service connection for an acquired psychiatric disorder, including PTSD, to include as secondary to his service-connected TBI is necessary. There is conflicting medical evidence as to whether the Veteran meets the diagnostic criteria for PTSD. The October 2012 rating decision granted service connection for TBI and the RO conceded the incident reported by the Veteran that the submarine was involved in a collision, leading to a head injury in service. The June 2009 and August 2012 VA examinations did not find that the Veteran had PTSD. The statement from the Veteran's treating social worker at VA indicates that the Veteran met the criteria a diagnosis of PTSD but did not clearly indicate the stressor supporting that diagnosis, as it was indicated that PTSD is related to "traumatic" events in his service. Additionally, the June 2009 VA examiner found that the Veteran had psychiatric symptoms, but that he did not meet the diagnostic criteria for PTSD as the stressor regarding hitting his head was not an adequate stressor. The August 2012 VA PTSD examiner found that the Veteran met the criteria for a schizoaffective disorder, with onset after service, but also found that the stressor of falling out of the bunk aboard ship was adequate to support the diagnosis of PTSD. Furthermore, the medical evidence is unclear as to whether the Veteran's psychiatric complaints and diagnoses, if any, are related to the Veteran's service-connected TBI. The August 2012 VA TBI examiner opined that the Veteran's only residuals of a TBI were headaches and facial pain, and that the Veteran's cognitive complaints are related to psychiatric disease. In contrast, the August 2012VA PTSD examiner opined that the Veteran did not have any cognitive impairment due to his schizoaffective disorder and that there was no indication of symptoms attributable to a TBI; however, that examination was provided prior to the Veteran's diagnosis with, and service connection for, a TBI. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds that the Veteran should be afforded a VA examination. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). By rating action in October 2012, service connection for TBI granted and assigned a 30 percent rating. In an April 2013 statement, the Veteran filed a notice of disagreement (NOD) with the 30 percent rating. Because the Veteran filed a NOD to the issue of entitlement to a higher initial rating for TBI, the Veteran is entitled to a SOC addressing that issue. When a claimant has filed a NOD and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records pertaining to the claimed psychiatric disorder dated from March 2013 to the present. 2. Schedule the Veteran for a VA psychiatric examination in order to assist in determining the current nature and likely etiology of any acquired psychiatric disorder, including PTSD. Based on the examination and review of the record, the examiner is requested to provide the following opinion: The examiner should first identify any and all current psychiatric disorders (diagnoses), to include PTSD. If the Veteran is found to have PTSD, the examiner is requested to identify the diagnostic criteria, including the specific stressor or stressors supporting the diagnosis. The examiner should specifically address whether any claimed stressor regarding fear of hostile military or terrorist activity is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. In answering this question, please specifically the submarine accident in service. If the Veteran is found to have a psychiatric diagnosis other than PTSD, the examiner is requested to render an opinion as to whether it is at least as likely as not that the Veteran's diagnosed psychiatric illness had its onset during service or is otherwise related to service. In the event that the examiner does not conclude that a psychiatric disorder is related to service, the examiner should also set forth an opinion was to whether it at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran has an acquired psychiatric disorder, including PTSD, which is proximately due to, the result of, or aggravated by (permanently worsened in severity) by the service-connected TBI. If the examiner concludes that the Veteran's psychiatric disorder was aggravated by his TBI, the examiner should, to the extent possible, identify the baseline level of severity of the psychiatric disorder before the onset of aggravation. A complete rationale for all opinions must be provided. If the examiner cannot provide the above requested opinion without resort to speculation, it must be so stated, and a supporting rationale provided for that opinion. 3. Adjudicate the claim of service connection for an acquired psychiatric disorder, including PTSD on the merits. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and 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. 4. The AMC/RO should issue a Statement of the Case addressing the claim for entitlement to a higher initial rating for TBI. The Veteran and his representative should also be advised that, for the Board to have jurisdiction in the matter, a timely substantive appeal responding to the SOC must be filed. Should the Veteran or his representative submit a timely substantive appeal, the matter should be returned to the Board for appellate review. The Veteran is advised of the consequences for failure to report for a scheduled examination. According to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. The purpose of this remand is to provide assistance by further developing the record. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs