Citation Nr: 1527956 Decision Date: 06/30/15 Archive Date: 07/09/15 DOCKET NO. 13-08 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disability, including posttraumatic stress disorder. 2. Entitlement to service connection for residuals of a traumatic brain injury. REPRESENTATION The Veteran is represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to December 1953. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2014). REMAND Pursuant to his claim of entitlement to service connection for a psychiatric disability, including posttraumatic stress disorder (PTSD), the Veteran was scheduled for and underwent a VA examination in December 2010. After administering a clinical evaluation and reviewing the relevant evidence of record, including the Veteran's statements, the examiner rendered diagnoses of "a history of dysthymia, cognitive impairment, and depression. The depression appears to be in remission currently. History of anxiety." The examiner also stated that the Veteran did not "appear" to meet the diagnostic criteria for PTSD. The examiner did not render an opinion addressing the etiological relationship between any of the psychiatric disabilities and his active duty. Further, the examiner's opinion regarding PTSD is equivocal. Consequently, the Board finds that the December 2010 VA examination is inadequate for purposes of adjudicating the Veteran's claim and, thus, a remand is required to the Veteran another VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided). Additionally, the Veteran was scheduled for another VA examination or examinations in November 2012, including assessing whether residuals of a traumatic brain injury (TBI) were present. Documentation associated with the evidence of record shows that the Veteran failed to report for the examination(s). At the time the November 2012 VA examination was scheduled, the RO issued notice of the examination to the Veteran at what appeared to be his address of record. However, at some point during the pendency of this appeal, the Veteran's mailing address changed. The Board is unable to ascertain exactly when the Veteran's mailing addressed changed. In the interest of fairness and due process, the Board finds that a remand to provide the Veteran with another VA examination is warranted. The Veteran is reminded that in the normal course of events, it is his burden to keep VA apprised of his whereabouts. If he does not do so, VA is not obligated to "turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Moreover, corresponding to VA's duty to assist the Veteran in obtaining information is a duty on the part of the Veteran to cooperate with VA in developing claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claims, rather than a duty on the part of VA to entirely develop the claims with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran to afford him the opportunity to identify or submit any additional pertinent evidence, to include the names and addresses of all health providers who have evaluated or treated him for a psychiatric disability and/or residuals of a TBI. Regardless of the Veteran's response, the RO must attempt to procure copies of all records which have not previously been obtained from the VA medical facility in Danville, Virginia. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must request from the Veteran a comprehensive statement containing as much detail as possible regarding his claimed non-combat, in-service stressors. The Veteran must be asked to provide specific details of these claimed stressful events, to include the dates and places the incidents occurred, and the unit (division, regiment, battalion, company) to which the Veteran was assigned or attached to at the time. The Veteran must be advised to provide a 60-day window for the dates of the claimed events. The Veteran must also provide any other identifying information concerning any other individuals involved in the events, including their names, ranks, and units of assignment or any other identifying detail. The RO must advise the Veteran that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he must be asked to be as specific as possible because, without such details, an adequate search for verifying information cannot be conducted. The Veteran must also be advised to submit any verifying information that he can regarding the stressors he claims to have experienced in service, such as statements of fellow service members. The Veteran must be further advised that failure to respond may result in adverse action. 3. The Veteran must then be afforded a VA examination to determine whether a psychiatric disorder is related to his military service. The evidence of record, in the form of electronic records, must be made available to and reviewed by the examiner. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record, both non-combat and combat stressors. All pertinent symptomatology and findings must be reported in detail. All studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner must integrate the previous psychiatric findings and diagnoses with any current findings to obtain a true picture of the nature of the Veteran's psychiatric status. If a PTSD diagnosis is rendered, the examiner must show how each diagnostic criterion to support a diagnosis of PTSD has been satisfied, including whether the requirements for the sufficiency of a stressor have been met. The examiner must specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD by the examiner. If a psychiatric diagnosis or diagnoses other than PTSD is/are warranted, the examiner must render an opinion as to whether any such disability was incurred in or due to the Veteran's active duty. In rendering this opinion, the examiner must specifically address the Veteran's statements regarding, but not limited to, in-service events and symptoms and post-service symptoms. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The Veteran must be afforded a VA examination with respect to his claimed residuals of a TBI. The evidence of record, in the form of electronic records, must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. After review of the evidence of record and administering a clinical examination, and with consideration of the Veteran's statements, the examiner must provide an opinion as to the presence of any residuals of a TBI during the period on appeal and, if so, whether they were incurred in or due to his active duty. All rendered opinions must be accompanied by a thorough rationale. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the associated claim(s). 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After the above development has been completed, the Veteran's claims must be re-adjudicated. If any claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).