Citation Nr: 1330493 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 08-38 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include dysthymic disorder, attention deficit hyperactivity disorder not otherwise specified (NOS), depression, bipolar disorder, obsessive compulsive disorder, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected chronic right ankle sprain. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June to August 1991 and from January 1997 to September 1999. He received the Army Commendation Medal. These matters came before the Board of Veterans Appeals' (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for dysthymic disorder with attention deficit hyperactivity disorder and denied the Veteran's petition to reopen a claim of service connection for a left ankle sprain as new and material evidence had not been submitted. The RO in Roanoke, Virginia currently has jurisdiction over the Veteran's claims. In his December 2008 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge in Washington, DC. A hearing was scheduled for a date in June 2012 and the Veteran was notified of the date and time of the hearing in a letter dated in April 2012. This letter was sent to his address of record and was not returned as undeliverable. The Veteran failed to appear for the scheduled Board hearing. He has not explained his absence or requested to reschedule the hearing. Thus, his appeal will be processed as if he withdrew the hearing request. See 38 C.F.R. § 20.704(d) (2012). The Veteran's claim of service connection for a left ankle disability was originally denied in a December 1999 rating decision. The Veteran did not appeal this decision and new and material evidence was not received one year of the decision. New and material evidence would ordinarily be required to reopen this claim under such circumstances. 38 U.S.C.A. § 5108 (West 2002). However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will adjudicate the claim without regard to the prior decision. 38 C.F.R. § 3.156(c)(1) (2013). Additional relevant service personnel records in existence at the time of the December 1999 decision have been added to the record. Accordingly, the Board will adjudicate the claim of service connection for a left ankle disability on a de novo basis without the need for new and material evidence. These matters were remanded in November 2012. 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 In November 2012, these matters were remanded to afford the Veteran VA examinations for the claimed psychiatric and ankle disabilities. The Veteran was scheduled to attend VA examinations on May 20, 2013 at the Salem VAMC. He failed to appear for the VA examinations. On May 16, 2013, the Veteran had contacted the Salem VAMC requesting assistance with transportation to the VA examinations. He was informed that there was no travel assistance to his area, but he could obtain transportation from the Danville/Martinsville areas. The Veteran reported that he did not have any means of transportation to these areas. He was encouraged to seek transportation from friends, neighbors and the church. VA treatment records show that the Salem and Richmond VAMCs have been providing transportation for the Veteran to attend medical appointments and assisted him with travel to attend a June 17, 2011 VA examination appointment pertaining to the left ankle. Thus it appears that transportation is available to bring the Veteran to VA examinations (it also appears that the Veteran resides significantly closer to the Durham, North Carolina VAMC than to the VAMC in Salem). The Board finds that the Veteran had good cause for failing to report for the scheduled VA examinations. See 38 C.F.R. § 3.655(a). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to whether any current psychiatric disability is related to service. Appropriate efforts should be made to assist the Veteran with transportation to the scheduled VA examination. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disability (any psychiatric disability diagnosed since July 2007) had its onset in service, had its onset in the year immediately following service (in the case of any current psychosis), is related to his reported stressors and psychiatric symptoms in service, or is otherwise related to a disease or injury in service? (b) Does the Veteran meet the criteria for a diagnosis of PTSD? (c) If the Veteran does meet the criteria for a diagnosis of PTSD, what are the stressors that support the diagnosis? The examiner is advised that the Veteran's reported stressor of being lost in the desert in an area where live ammunition training was scheduled to be held has not been corroborated. In formulating the above opinions, the examiner must acknowledge and comment on all psychiatric disabilities diagnosed since July 2007, all of the Veteran's reported stressors in service (including being involved in a motor vehicle accident), the Veteran's reported stressors outside of service, and the Veteran's reports of memory problems and nervous trouble in February and March 1999. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for psychiatric problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report stressors in service, his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. In the event the Veteran is unable to attend the scheduled VA examination or otherwise fails to appear for the scheduled VA examination, the VA examiner should attempt to answer the above questions based upon a review of the claims folder and Virtual VA. 2. Schedule the Veteran for a VA examination to determine whether he has a current left ankle disability that is related to service. Appropriate efforts should be made to assist the Veteran with transportation to the scheduled VA examination. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left ankle disability (any left ankle disability diagnosed since July 2007) had its onset in service, had its onset in the year immediately following service (in the case of arthritis), is related to his left ankle pain and numbness in May 1999, or is otherwise related to a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left ankle disability (any left ankle disability diagnosed since July 2007) was caused (in whole or in part) by his service-connected chronic right ankle sprain? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left ankle disability (any left ankle disability diagnosed since July 2007) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected chronic right ankle sprain? The examiner should note whether there is medical evidence created prior to any aggravation, or the earliest evidence created at any time between the time of aggravation and medical evidence showing the current level of severity of the current disability, that shows a baseline of the left ankle disability prior to the aggravation. In formulating the above opinions, the examiner must acknowledge and comment on all left ankle disabilities diagnosed since July 2007, the May 1999 report of treatment for left ankle pain and numbness, and the Veteran's reports of left ankle injuries in service. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for a left ankle injury in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report left ankle injuries in service, his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. If the Veteran is unable to attend the scheduled VA examination or otherwise fails to appear for the scheduled VA examination, the VA examiner should attempt to answer the above questions based upon a review of the claims folder and Virtual VA. 5. The RO/AMC should review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 6. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. The case should then be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ Mark D. Hindin 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).