Citation Nr: 1332817 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 99-24 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Mother ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who had active service from September 1979 to May 1981. He had an additional period of active duty for training from May 1978 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1999. He appeared at a Board hearing in April 2004, and the appeal was remanded in October 2004. Subsequently, the Veterans Law Judge who held the hearing left the Board, but the Veteran stated, in May 2009, that he did not wish to appear at another hearing. This case was remanded in July 2009 for further evidentiary development. 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 Pursuant to the July 2009 remand a VA examination was scheduled in August 2009. While the Veteran reported to the examination, the session lasted only five minutes as the Veteran refused to participate. The examiner reported that any diagnosis would be based solely on the record. She then noted that he had been variously diagnosed in the past with bipolar disorder, schizophrenia, alcohol dependence, cocaine dependence, and personality disorder. Significantly, she did not provide an opinion as to the etiology of his psychiatric disorders. The Veteran stated that he did not understand why he had to come in for an interview since he has been evaluated in the past. (It is acknowledged that he was found incompetent to handle disbursement of VA funds, in a June 2010 RO decision.) It is also noted that other evidence on file establishes that he has failed to report for more recent treatment and examination to include an examination scheduled in November 2011. Despite the Veteran's recent history of not appearing for VA evaluation and treatment, he will be given another opportunity to present for an examination for the purpose of assessing the etiology of his psychiatric disability. Although the Veteran has been interviewed in the past, the prior evaluations did not provide the necessary information to adequately adjudicate the claim. Furthermore, he should be reminded that while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, he also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In light of the variously diagnosed psychiatric disorders, he should be given another chance to cooperate by scheduling another VA examination. Accordingly, the case is REMANDED for the following action: 1. Reschedule the Veteran for another VA psychiatric examination to determine whether he has a current acquired psychiatric disability which is related to service, specifically, to a head injury sustained in March 1980. The entire claims folder and a copy of this REMAND must be made available the physician or psychologist. The examiner's attention is drawn to the clinical records of the in-service hospitalization from March to April 1980, for evaluation of a head injury, (which are incorporated in the second volume of the claims folder, and not in a separate envelope); the numerous VA records of psychiatric treatment; and the Social Security Administration (SSA) psychiatric evaluation in June 2003, which included psychological testing. The examiner should provide a diagnosis for all psychiatric disorders currently present, and express an opinion as to whether any current acquired psychiatric disability is related to a head injury sustained in March 1980. Any indicated tests should be conducted, and the results reviewed prior to the final opinion. The complete rationale for all opinions expressed must be provided. It would be helpful if the physician would use the following language in his or her opinion, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In case the Veteran fails to cooperate, if at all possible, the examiner is asked to review the claims file and address the determinative issue of causation. If, the examiner is unable to provide this requested opinion without the cooperation of the Veteran, please explain why this requested opinion cannot be provided (so that it is certain no additional comment is possible based on the available evidence or evidence that is obtainable). The Veteran is hereby advised that failure to report or cooperate for this scheduled examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 2. After completion of the above and any additional development deemed necessary, the RO should review the issue of service connection for an acquired psychiatric disability, to include as related to an in-service head injury. If the benefit sought remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. Parakkal 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).