Citation Nr: 1604391 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 11-31 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder and post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Jeffrey J. Bunten, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to June 1973, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned Veterans Law Judge in November 2012. A transcript of this hearing is associated with the claims file. This claim was remanded by the Board in August 2014. As discussed below, an additional remand is required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its August 2014 remand, the Board directed that a VA examination be provided to assess the etiology of the Veteran's acquired psychiatric disorder. The Board acknowledges that, under applicable law, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655. Here, it appears that the AOJ sent a request for an examination to the VA Medical-Center Poplar Bluff in January 2015. In February 2015, VAMC Poplar Bluff canceled the examination request as they were unable to contact the Veteran in order to schedule the examination. It was noted that the Veteran did not respond to calls or a letter regarding scheduling the VA examination. It was also noted that the letter regarding scheduling the examination was not returned as undeliverable. However, the letter regarding scheduling a VA examination is not of record. This is significant as previous VA letters to the Veteran were returned as undeliverable due to use of an outdated address. Moreover, there is no indication that the Veteran's attorney was copied on any letter regarding scheduling a VA examination. As there is no copy of a letter scheduling the Veteran for a VA examination in the claims file, the Board finds that the record is insufficient to determine whether proper notice of a VA examination was mailed to the Veteran so as to permit the application of 38 C.F.R. § 3.655. See Kyhn v. Shinseki, 716 F.3d 572 (2013). Thus, the Board finds that the claim must be remanded in order for the AOJ to schedule the Veteran for a VA examination. The notice letter regarding the examination must be included in the claims file and the letter must be sent to the Veteran's attorney as well. Upon remand, the RO should again afford the Veteran an opportunity to identify outstanding psychiatric treatment records, to specifically include records from Dr. Liss after October 2012, St. Anthony's Medical Center beginning from the 1970s, any psychiatric treatment records from previous employers, and any records from Dr. Wader and Dr. Vohee. Accordingly, the case is REMANDED for the following action: 1. Associate any records of pertinent VA treatment with the claims file. 2. Afford the Veteran an opportunity to submit any other information that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file, to include pertinent psychiatric treatment records from Dr. Liss dated after October 2012, psychiatric records from St. Anthony's Hospital beginning from the 1970s, psychiatric records from previous employers, and any psychiatric records from Dr. Vohee and Dr. Wader. Associate any available records with the claims file. 3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other additional lay or medical evidence from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his behavioral changes post-service, to include hearing voices within one year of separation from service. He should be provided an appropriate amount of time to submit this evidence. 4. Schedule the Veteran for an appropriate VA psychiatric examination to determine the nature, onset, and etiology of his acquired psychiatric disorder. A copy of the letter regarding scheduling the examination must be associated with the claims file. The letter regarding the scheduled VA examination should be sent to both the Veteran and his attorney. Inform the Veteran that failure to appear for an examination as requested without good cause could adversely affect his appeal. 5. Afford the Veteran a VA psychiatric examination to determine the nature, onset, and etiology of any identified acquired psychiatric disorder. The claims file must be made available to the examiner for complete review of the Veteran's pertinent medical history. After conducting an appropriate examination of the Veteran, the examiner should diagnose any acquired psychiatric disorders found to be present. A diagnosis of PTSD should be specifically ruled in or excluded. In determining whether the Veteran has a diagnosis of PTSD, the examiner must discuss Dr. Liss's treatment records, to specifically include the July 2009 and November 2009 assessment of PTSD. If the Veteran does not have PTSD, the elements of the criteria for that diagnosis that are lacking should be set forth. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's schizoaffective disorder, and any other acquired psychiatric disorder found to be present, had its onset during service, within the initial year after separation from service, or is otherwise related to service. The examiner shall specifically address the Veteran's competent report that he began hearing voices within one year of separating from service. 6. Then readjudicate the appeal. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ STEVEN D. REISS 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).