Citation Nr: 1323804 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-17 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), bipolar disorder, a nervous condition, clinical depression, anxiety, insomnia and night sweats. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified during a hearing before the undersigned Veterans Law Judge in April 2011. A transcript of the hearing is of record. The Veteran appealed the Board's November 2011 decision denying the Veteran's claim of entitlement to service connection for an acquired psychiatric disability to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Order, the Court granted a Joint Motion for Partial Remand, vacated the portion of the Board's November 2011 decision that denied entitlement to service connection for an acquired psychiatric disability and remanded the matter to the Board for action consistent with the Joint Motion. The Board remanded the claim in February 2013. The Appeals Management Center (AMC) continued the denial of the Veteran's claim in a June 2013 supplemental statement of the case and returned the issue to the Board for adjudication. 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 The Board remanded this claim in February 2013 to provide the Veteran with a VA examination and etiology opinion. Documentation in the claims file shows that the Veteran failed to report to the scheduled examination, but the claims file does not contain a copy of the examination notification letter. The Veteran's representative argues that it is unclear whether the Veteran was notified of the examination. Moreover, in light of the lay statements provided by the Veteran and his sister of a change in personality after service and the post service diagnoses of psychiatric disabilities and the prior remand by the Court, the Board has determined that an opinion by a mental health professional with respect to whether the evidence of record indicates that the Veteran was assaulted in service and his psychiatric disability or disabilities are related to that incident in service is necessary prior to adjudicating the claim on appeal. The Veteran should be provided with another opportunity to attend a VA examination. He should also be notified of why an examination is necessary, and of the consequences of his failure to report. 38 C.F.R. § 3.655 (2012). If the Veteran fails to report to the scheduled examination place a copy of that notification letter in the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran with a VA mental health examination to determine the identity and etiology of any psychiatric disorder that may be present to include PTSD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for PTSD and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to provide opinions on the following questions: a. Whether the Veteran has PTSD and if so, what stressors are linked to his PTSD? b. If the examiner determines that the Veteran has PTSD related to a claimed in-service stressor of personal assault, the examiner should review the claims folder and render an opinion as to whether there is evidence of changed behavior after the alleged assault, which would be consistent with the alleged trauma. c. If the examiner determines that the Veteran does not have PTSD, but he has another psychiatric disorder or disorder, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the psychiatric disorder(s) is related to military service. The examiner should provide a complete explanation for all conclusions reached. The examiner is asked to review and discuss the lay statements from the Veteran in the claims file and during the examination and the lay statements from the Veteran's sister received in January 2010. 2. The Veteran should be notified of the consequences of his failure to report to a VA examination pursuant to 38 C.F.R. § 3.655; that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. 3. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to service connection for a psychiatric disability, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, return the case to the Board for further consideration, if 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). _________________________________________________ M. E. LARKIN 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).