Citation Nr: 1332842 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-08 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, pain disorder with psychological and medical factors, bipolar disorder, and obsessive compulsive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to October 1971, with service in the Republic of Vietnam from April 1969 to April 1970. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied the claim of service connection for PTSD. In March 2008 the Veteran testified at a hearing before RO personnel. A transcript of the hearing is associated with the claims file. The Board previously explained that a March 2013 request by the Veteran for a Board hearing is denied. The Veteran was originally scheduled for a Travel Board hearing on March 18, 2009. He notified VA that he was sick on the day of the scheduled hearing and was unable to attend. See March 2009 statement. Then, the Veteran was scheduled for a Video Conference hearing on May 5, 2009. That day the Veteran called VA to say that he had a medical condition (knee) that prevented him from travelling and that he was told that he would be scheduled for a video hearing locally in Memphis, but had not received further information. In September 2009, the Board remanded the Veteran's claim for the Veteran to be scheduled a Video Conference hearing. The Veteran was scheduled for a Video Conference hearing on November 10, 2009. However, the Veteran failed to report to the scheduled hearing and did not notify VA. In his March 2013 statement, the Veteran expressed a desired to have a hearing. Absent a showing of good cause for why he was unable to attend the prior hearing, the new request for a hearing is denied and the case will proceed as if the hearing request was withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(c). In September 2011 and June 2013, the Board remanded this case for further 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 The Veteran has a right to substantial compliance with the Board's remand orders. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. Thus, while the Board regrets the additional delay in this case, for the reasons discussed below, the case must be returned to the RO/AMC. In June 2013, the Board remanded the claim remaining on appeal to obtain an addendum opinion, and a new examination if necessary, to determine whether a current acquired psychiatric disability is related to the Veteran's active duty service. The Board specifically asked "whether the 'personality conflict' referenced in the September 1969 [service treatment] record evinces an in-service onset" of a psychiatric disability. The Board also requested that the examiner provide reasons for the opinion, including medical reasons for accepting or rejecting any of the Veteran's statements. A review of the July 2013 VA mental disorders examination and opinion reflects that the examining psychologist did not specifically address the September 1969 service treatment record, which documents a visit to the mental health clinic in Pleiku, Vietnam and did not provide a sufficient reason supporting the conclusion that the diagnosed obsessive compulsive personality disorder and bipolar disorder were not the result of military service or related to military service. The examiner stated that there "is no evidence in the [claims] file or other computerized records that links either [disability] to his military service." The examiner's basis for the opinion is the reason that the Board requires a medical opinion. The September 1969 service treatment record reflects a visit with a mental health provider, the Veteran has diagnosed psychiatric disabilities now, and he claims they began in service or were related to military service. Therefore, an additional medical opinion supported by a more specific basis for the conclusion is required. In addition, in an October 2013 written brief presentation, the Veteran's representative asserted that the claimed acquired psychiatric disabilities (to include PTSD) are secondary to the service-connected tinnitus. In support of this contention, the representative cited a clinical study conducted by East Tennessee State University, Department of Communicative Disorders, and James H. Quillen Veterans Affairs Medical Center Tinnitus Clinic in Mountain Home, Tennessee. The representative provided the following link to the web-article: http://aja.asha.org/cgi/content/short/16/2/107. The RO/AMC should arrange for a VA examination and medical opinion to address whether any current psychiatric disorder was caused or is aggravated by the service-connected tinnitus. See 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The RO/AMC should provide VCAA notice to the Veteran regarding establishing service connection for disability on a secondary basis. Before arranging for an additional VA examination, relevant ongoing VA medical records should also be requested from the VA medical center in Memphis, Tennessee and related clinics dating since July 2009. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Provide VCAA notice to the Veteran regarding the information and evidence necessary to establish service connection for a psychiatric disorder on a secondary basis. 2. Relevant ongoing VA treatment records dating since July 2009 to the present from the Memphis, Tennessee VA medical center and related clinics should be obtained. 3. After completion of the above development, the Veteran should be afforded a VA examination conducted by a psychiatrist or clinical psychologist to determine whether an acquired psychiatric disability was incurred in or related to military service or was caused or is aggravated by service-connected tinnitus. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the psychiatrist or psychologist designated to examine the Veteran and the report of examination should note review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. Following a review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disabilities found on examination. For each psychiatric disability found on examination, the examiner should respond to the following questions: a) Indicate whether it is at least as likely as not (a 50 percent or greater probability) that a psychiatric disability began in service or is otherwise medically related to military service. In rendering a medical opinion regarding direct service connection, the examiner should discuss the September 1969 service treatment record in which the Veteran was seen at the mental health clinic and explain whether the record evinces an in-service onset of a psychiatric disability. b) If a psychiatric disability found on examination did not begin in service or is otherwise not medically related to military service, indicate whether any diagnosed psychiatric disability is at least as likely as not (a 50 percent or greater probability) caused by the Veteran's service-connected tinnitus. If not caused by the tinnitus, then the examiner should opine whether any diagnosed psychiatric disability is permanently worsened beyond normal progression (aggravated) by the service-connected tinnitus. If the examiner finds any psychiatric disability aggravated by tinnitus, he/she should attempt to quantify the degree of aggravation. A complete rationale for all conclusions must be included in the report provided. (Any medical record reviewed and relied on by the examiner must be included in the claims folder). If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The RO/AMC should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion with respect to any diagnosed psychiatric disability can be obtained). 4. Thereafter, the RO/AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should 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. 2013). _________________________________________________ J. A. MARKEY 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) (2013).