Citation Nr: 1338142 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-09 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed as residuals of pneumonia. 2. Entitlement to service connection for a posttraumatic stress disorder (PTSD) or other psychiatric disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part denied service connection for a respiratory disorder and for PTSD. The Board remanded the claim in November 2009 for further development. In November 2011 the Board issued a decision denying service connection for a respiratory disorder and service connection for PTSD. The Veteran thereupon appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2013 the Court issued a Memorandum Decision that vacated the Board's decision and returned the case to the Board. The Court's Memorandum Decision expanded the PTSD claim to one of entitlement to service connection for "PTSD or Other Psychiatric Disorder" citing Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board has recharacterized the issue as shown on the title page to comport with the language of the Court. 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 on his part. REMAND The Court held in its Memorandum Decision that additional medical evidence should be obtained before the issues on appeal are adjudicated. The Court stated that the VA respiratory examination in February 2011, with addendum opinion in August 2011, demonstrated that the Veteran did not currently have bronchitis, but the opinions did not address the question of whether the Veteran had a chronic respiratory disorder during the course of the claim prior to 2009. The Court concluded that the appropriate remedy is to obtain a medical opinion on that question. In regard to PTSD, the Court held the VA PTSD examination in February 2011 had initially relied on an inaccurate Stressor Review Checklist, and that the subsequent addendum opinion in August 2011, which was based on a corrected Stressor Review Checklist, did not address the new stressor evidence in relation to the Veteran's depressive symptoms. The Court concluded that the appropriate remedy is to afford the Veteran a new VA examination. The Board is bound by the findings of the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case; the Board is therefore not free to do anything contrary to the Court's prior action with respect to the same claim). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the nature of his disorder and to obtain an opinion as to whether any current psychiatric disorder is related to service. The claims folder must be reviewed by the examiner in conjunction with the examination. Any tests deemed necessary should be conducted and the results reported. Based on review of the file and examination of the Veteran, the examiner should provide the diagnosis for any psychiatric disorder that has been demonstrated since 2005. For each such disorder, the examiner should opine whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder is etiologically related to service. In rendering the opinion with regard to all diagnoses, the examiner should consider the August 2011 Stressor Checklist prepared by the RO, wherein the RO conceded the Veteran's in-service stressor (unit being ambushed and subjected to mortar attacks in Vietnam) relates to the fear of hostile military activity. The rationale for all opinions expressed should be provided, and if it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained. 2. The claims file should be forwarded to a VA pulmonologist for review. Based on review of the file, the examiner should identify any chronic respiratory disorder that was present during the period 2005-2009; and, for any such disorder(s), provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder is etiologically related to service. The rationale for all opinions expressed should be provided, and if it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. After the above has been completed to the extent possible and any additional development deemed necessary has been accomplished, the RO/AMC should readjudicate the claims on appeal. If the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and provided an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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. 2013). _________________________________________________ K. A. BANFIELD 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).