Citation Nr: 1323663 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-00 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include PTSD, anxiety, and insomnia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1968 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge at an April 2013 video conference hearing. A transcript of that hearing is of record. In May 2013 the Board reopened the claim and remanded the issue for additional development. Attached to a letter dated July 16, 2013, from the accredited representative, 11 cassette tapes were provided for consideration with respect to the claim for service connection for a psychiatric disorder. The representative requested that the tapes be transcribed. 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 May 2013, the Board reopened the Veteran's claim and remanded it to the AMC. In that remand, the Board ordered that the Veteran be provided with notice under the VCAA pertaining to claims made based on personal and/or sexual assault; that additional records be added to the claims file; that the AMC determine whether there was adequate information to attempt to verify the Veteran's claimed stressor; that a medical opinion be obtained; and that, after the above was completed, the AMC readjudicate the issue. For reasons wholly unclear to the Board, the AMC failed to determine whether the appropriate agencies should be contacted to verify the Veteran's claimed stressors, nor did the AMC schedule the Veteran for a new VA examination. Additionally the AMC, in July 2013, issued a supplemental statement of the case pertaining to the issue of whether new and material evidence had been submitted to reopen the Veteran's claim, an issue which had already been decided the Board, and is not subject to further VBA review. The cassette tapes submitted by the accredited representative must be transcribed. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Because AMC failed to comply with the mandates of the May 2013 Board remand and thus additional development is still necessary, the issue must be remanded again. Accordingly, the case is REMANDED for the following action: 1. Undertake any necessary development to independently verify the Veteran's described stressors, if adequate detail is provided by the Veteran for such verification. Verification efforts must include contacting the National Personnel Records Center (NPRC), the U.S. Army and Joint Service Records Research Center (JSRRC) and/or other agency deemed appropriate. Contact any and all facilities which treated her for anything related to her claimed stressors while on AWOL, and request all relevant reports and records in their possession. Notify the Veteran of any unsuccessful efforts to obtain records and describe any further action to be taken. If it is determined that there is insufficient information to pursue further efforts to verify the claimed stressor(s), such must be noted in a formal finding. 2. Transcribe the 11 cassette tapes provided by the accredited representative. 3. Schedule the Veteran for a VA psychiatric examination with an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner, including the transcript of the 11 cassette tapes. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to address the following: Did any psychiatric disorder clearly and unmistakably exist prior service entrance, and, if so, was the disability clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service. If the examiner does not find that a psychiatric disorder clearly and unmistakably existed prior to service then: Diagnose all current psychiatric pathology, if any is present, specifically ruling in or excluding diagnoses of anxiety, insomnia and PTSD; If a diagnosis of PTSD is warranted the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that PTSD is related to service, specifically considering any credible account of stressors pertaining to the Veteran's reported sexual assault and experiences in the Women's Army Corps. As to all diagnosed psychiatric conditions other than PTSD, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) the condition had its onset in-service or within one year of separation and is related to the Veteran's period of military service. The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements, service personnel records, VA treatment notes, cassette tape transcripts, etc.) and set forth a complete rationale for all findings and conclusions. All necessary tests must be performed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 4. Thereafter, review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and her representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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). _________________________________________________ RONALD W. SCHOLZ 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).