Citation Nr: 1512315 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 02-18 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to December 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed, to include a transcript of the June 2006 Board hearing presided over by the undersigned acting Veterans Law Judge. In August 2006 and August 2008, the Board remanded the claim for further development. In September 2011, the Board again remanded the claim for further evidentiary development. The claim was denied in an April 2014 supplemental statement of the case, and the case is back before the Board for further appellate proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As the Veteran's representative correctly states in the January 2015 Appellant's Post-Remand Brief, in the September 2011 remand, the Board directed the AOJ to afford the Veteran a VA examination to determine the nature and etiology of an acquired psychiatric disorder. The record indicates that the Veteran was scheduled for a VA examination in July 2012, but this examination was cancelled thereafter in July 2012. See July 2012 Request for VA examination. The January 2013 supplemental statement of the case states that the reason given was that the Veteran was "out of town." However, there is no indication in the record that the AOJ provided notice to the Veteran of the July 2012 VA examination, for which the Veteran failed to appear, and there is no indication that the examination was rescheduled. Because the Veteran was not afforded a VA examination, the AOJ's actions are not in conformity with the Board's September remand directives. Accordingly, this matter must again be remanded to obtain a new VA examination. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to any outstanding records relevant to his mental health, specifically to include any private treatment providers. Attempts should be made to obtain identified records. All attempts to fulfill this development should be documented in the claims file. 2. Obtain the Veteran's complete VA treatment records dating from December 2012 to present. Associate all records obtained with the Veteran's claims file. 3. Afterwards, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of a psychiatric disorder, to include PTSD. Make the claims file available to the examiner for review of the case (including both Virtual VA and VBMS). The examiner is asked to note that this case review took place. Provide notice of the scheduled VA examination to the Veteran at his current address. The exam notification letter sent to the Veteran must be placed in the claims file prior to its return to the Board. In the scheduling of the examination(s), the Veteran should notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection and result in a denial. 38 C.F.R. § 3.655 (2014) (a) Provide an opinion as to the nature and diagnosis(es) of the Veteran's psychiatric disability, to include PTSD, schizophrenia, and psychosis. In so doing, opine whether the Veteran has had a verified diagnosis of PTSD conforming to the DSM-IV, or any other psychiatric disorder, at any point during the appeal period (June 2000 to present). (b) If the Veteran has had PTSD during the appeal period, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that the PTSD is etiologically related to service, including as a result of any claimed in-service stressor. In so doing, the examiner should consider the Veteran's reported experiences during basic training. See e.g., June 2000 claim. (c) Regarding any diagnosis other than PTSD, including schizophrenia and psychosis, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that the Veteran's diagnosed psychiatric disorder(s) other than PTSD is etiologically related to service. Regarding the presence of psychosis, the examiner is asked to also opine whether it is at least as likely as not (probability of 50 percent) that the Veteran exhibited a psychosis in service or within the first post-service year. In so doing, the examiner should consider the Veteran's reported experiences during basic training. See e.g., June 2000 claim. (d) If a psychiatric disorder is not related to service, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that a psychiatric disorder was caused by the service-connected migraines. (e) If a psychiatric disorder is not related to service and was not caused by migraines, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that a psychiatric disorder was aggravated (i.e., worsened) beyond the natural progress by migraines. If aggravation is found, the examiner should address the following medical issues: a. the baseline manifestations of the Veteran's psychiatric disorder found prior to aggravation; and b. the increased manifestations which, in the examiner's opinion, are proximately due to the migraines. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that a lack of medical documentation in service alone is not sufficient to render lay evidence not credible. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the claims on appeal and furnish the Veteran and his representative a supplemental statement of the case if the matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. 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). No action is required of the Veteran until he is notified; however, the Veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection and result in a denial. 38 C.F.R. § 3.655 (2014). 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 2014). _________________________________________________ NANCY RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).