Citation Nr: 1340110 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 10-24 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 2005 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Paul, Minnesota, that denied the benefit sought on appeal. In a letter received in December 2011, the Veteran indicated that he was seeking service connection for his psychiatric problems, including adjustment disorder, anxiety disorder and PTSD. Accordingly, the issue on appeal has been restated to reflect the appropriate adjudicatory considerations of the Veteran's claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran requested and was scheduled for a hearing before a Veterans Law Judge at the local regional office in October 2011. On the date of the scheduled hearing, his representative submitted a letter from the Veteran in which he stated that he wanted to cancel his hearing. The Board, therefore, finds that the Veteran has withdrawn his request to testify before the Board. 38 C.F.R. § 20.704 (2013). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with this claim. A review of the documents in such file reveals that an Appellant's Brief has been submitted on behalf of the Veteran by his representative. This has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). The Veteran contends that he has a psychiatric disorder, which he considers to be PTSD, as a result of his service in Iraq. The evidence of record shows that the Veteran has been treated by VA outpatient services for psychiatric problems, variously diagnosed as bipolar disorder, adjustment disorder and schizoaffective disorder, since shortly after his discharge from service. Although the Veteran was scheduled for several VA psychiatric examinations during the pendency of this appeal, including in January, April and August 2010 and January 2011, he failed to report for any of the examinations. As noted, in October 2011, the Veteran had also been scheduled for a personal hearing before a Veterans Law Judge of the Board. On the date of the scheduled hearing, his representative submitted a letter from the Veteran in which he stated that he wanted to cancel his hearing and to withdraw his appeal. However, in a letter received in December 2011, the Veteran indicated that he wanted to continue his appeal for a psychiatric disorder, and that he was willing to report for a VA psychiatric examination. In an effort to afford the Veteran every opportunity to cooperate with VA, the Board finds that he should be scheduled for an another VA examination. The Veteran is advised that a VA psychiatric examination is necessary to determine the nature and etiology of any identified psychiatric disorder, and that his failure to report for this fifth and final opportunity for a VA examination can have a negative effect on his claim. 38 C.F.R. § 3.655. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted psychiatric disorder should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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). In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the AMC for the following action: 1. The RO/AMC shall obtain all VA treatment records from April 2011 (last treatment report of record) to the present and associate them with the claims file, either physically or electronically. Follow all procedures outlined in 38 C.F.R. § 3.159, to include notifying the Veteran and his representative of any unavailable records. 2. The RO/AMC shall then schedule the Veteran for a VA psychiatric examination to determine precise nature and etiology of his asserted psychiatric disorder, to include PTSD. The claims file must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All appropriate psychological tests deemed necessary must be administered. The examiner is requested to provide a response to the following: (a) Is it at least as likely as not that the Veteran has symptomatology that satisfies the required criteria under DSM-IV for a diagnosis of PTSD as defined under 38 C.F.R. § 4.125. If so, the examiner is directed to ascertain whether it is at least as likely as not that the PTSD is related to the in-service stressful events that are consistent with the incidents of the Veteran's period of active service in Iraq, or any other asserted stressor as identified by the Veteran? The examiner is directed to specifically comment upon the medical findings of record pertaining to a diagnosis of PTSD related to an in-service stressor event, and express his or her agreement or disagreement therewith. (b) For any other diagnosed psychiatric disorder, the examiner shall provide a medical opinion indicating whether the evidence of record clearly and unmistakably shows that the Veteran had a psychiatric disorder that existed prior to his entry into active service. If so, does the evidence of record clearly and unmistakably show that (i) the pre-existing psychiatric disorder was not aggravated by service, or that (ii) any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. If the answer to either part of (b) is no, is it at least as likely as not that any diagnosed psychiatric disorder manifested during the course of this appeal had its onset during the Veteran's period of active service? The examiner must address whether it is at least as likely as not that the Veteran presented the prodromal signs of any currently diagnosed psychiatric disorder during service. The examiner is advised that the Veteran is competent to report 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 of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a psychiatric disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 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 examiner must provide a rationale for each opinion given. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, he and his representative must be provided with a Supplemental Statement of the Case. An appropriate period of time shall be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this Remand and to cooperate in the development of his case. Failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). This claim must be afforded expeditious treatment. Claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).