Citation Nr: 1333632 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-02 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1972 to March 1974. He received a general (under honorable conditions) discharge for unsuitability. This matter originally came before the Board of Veterans' Appeals (Board) on an appeal from a July 2005 rating decision issued by the Regional Office (RO) in Cleveland, Ohio. This matter was previously remanded by the Board for additional development in December 2008, August 2009, November 2010 and, most recently, in January 2013. As noted by the Board in November 2010, the Veteran's claim for service connection has been re-characterized to broadly reflect that the scope of the claim includes any acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 After review of the evidence of record, the Board finds, unfortunately, that another remand is required. In the January 2013 remand, the Board directed additional development be completed, to include obtaining a new VA examination with response to several requests for opinion. The record indicates that Veteran was scheduled for this examination but failed to report to this examination without providing good cause. See 38 C.F.R. § 3.655 (2013); see also Kyhn v. Shinseki, 24 Vet. App. 228 (2011) (VA's established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a Veteran of a VA examination). The Board, however, finds that it cannot proceed to adjudication in this appeal based on the evidence of record pursuant to 38 C.F.R. § 3.655 based on the Veteran's failure to report to the examination as the most recent VA examination request was necessitated by inadequacies in a prior VA examination. Thus, VA still has a duty to assist the Veteran by obtaining answers to the medical questions posed in the January 2013 remand directive. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran failed to report to the last scheduled examination, however, the Board remands to obtain the requested opinion without an additional examination. In this regard, the Board notes that the claims file contains significant medical evidence and medical reports that should provide sufficient information on which to provide the requested opinions. In addition, based on the directives contained in the Board's January 2013 remand, the AMC obtained VA treatment records dated through June 21, 2013. Upon remand, the AMC should again obtain updated VA treatment records and associate these records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's VA treatment records since June 21, 2013, on an ongoing basis until the matter is recertified to the Board. All obtained records must either be printed and associated with the Veteran's paper claims file, or uploaded into the Veteran's electronic file contained in the Virtual VA system. 2. After completing the requested development in paragraph 1, the AMC should obtain an opinion to determine the nature and likely etiology of the claimed psychiatric disorder. This opinion should be provided by a psychologist other than the examiner who previously evaluated the Veteran in February 2010. No examination of the Veteran is necessary. A copy of this remand and all relevant medical records should be made available to the psychologist - such records must be made available to the psychologist either in the Virtual VA eFolder, or, if the eFolder is not available (such as if the psychologist has no access to Virtual VA), then via paper copies that are printed out for the psychologist. The psychologist is asked to confirm whether the paper and electronic records were available for review. Accordingly, the psychologist is asked to review the pertinent evidence, including the Veteran's lay assertions and the results of the prior examination. Then, based on the record review, the psychologist is requested to provide an opinion regarding the Veteran's psychiatric diagnosis and specifically indicate whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that a psychiatric disorder, if found, had its onset coincident with service, became manifest within a one-year period following his discharge from service, or is otherwise causally related to any event or circumstance of his active service. The psychologist is also asked to offer a detailed explanation fully expressing his/her reasoning as to why and how all conclusions and opinions are reached. This explanation should include reference to specific evidence in the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions, as indicated, plus any independent knowledge or research supporting and justifying the opinion. The following five considerations are of particular importance: (a) If a current psychiatric disorder (other than substance dependence) is not diagnosed, the VA psychologist is asked to clarify this determination in light of various VA outpatient treatment records, diagnosing various psychiatric disabilities to include an anxiety disorder (January 2005), depressive disorder (June 2010), and adjustment disorder with mixed anxiety and depressed mood (June 2012), (b) The VA psychologist is asked to identify whether the Veteran has ever manifested a distinct psychiatric disorder (other than substance dependence) at any point during or after his active duty service. (c) The VA psychologist's attention is directed to a May 1976 VA treatment record showing a diagnosis of situational disorder in the context of complaints legal, marital, and employment difficulties, which was approximately 2 years and 2 months after his service separation. (d) The psychologist is asked to carefully consider the Veteran's own assertions regarding the onset and continuity of his symptomatology. The psychologist is particularly asked to clarify whether the chronology/continuity of the Veteran's reported symptoms and history are consistent with the nature of the current diagnosis. If the psychologist determines that the Veteran's lay assertions are mistaken, the psychologist should identify the medical reasons why his lay opinion is incorrect. (e) If the psychologist relies on an absence of evidence showing symptoms or treatment at any point during the Veteran's history, the psychologist must explain either why silence in the record can be taken as proof that a doctor did not observe the symptom or why the fact would have normally been recorded if present (i.e., the psychologist must explain why the absence of evidence is evidence of absence). Similarly, if the psychologist determines that an opinion relating a current disorder to service would be speculative, s/he must clearly explain the reasons supporting this conclusion. The psychologist is thus requested to prepare a printed (typewritten) report setting forth all findings, along with a complete rationale for all opinions and conclusions reached. 3. After completing the requested actions, and any additional notification and/or development warranted by the record, the AMC should re-adjudicate the remanded claim. If any benefit sought on appeal remains denied, the AMC should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). (CONTINUED ON NEXT PAGE) 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. 2009). _________________________________________________ S. C. KREMBS Acting 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) (2009).