Citation Nr: 1614975 Decision Date: 04/13/16 Archive Date: 04/26/16 DOCKET NO. 10-21 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from May 1997 to October 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2012 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in August 2012, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. REMAND Regrettably, the Board finds that additional development is required before the claim on appeal is decided. In the August 2012 remand, the Board directed that the Veteran be afforded a VA examination to determine whether he had a psychiatric disability that was related to his active service, to include specifically whether he had a psychiatric disability which existed prior to service and was not aggravated by service. The Veteran was scheduled for the directed VA examination in January 2013 but failed to report. His appeal was then readjudicated and returned to the Board for further appellate action. In a March 2016 statement, the Veteran's representative reported that the Veteran had indicated that he would attend a VA examination should one be re-scheduled for him. In this regard, the Board acknowledges that the Veteran has the responsibility to report for scheduled VA examinations. The Veteran in this appeal failed to report for the scheduled hearing. However, the Board finds that the issue currently on appeal is of sufficient medical complexity such that affording the Veteran another opportunity to report for a VA examination in an effort to obtain much needed medical clarity would be beneficial in deciding the claim. Accordingly, the Veteran should be afforded another VA examination to determine the nature and etiology of any present psychiatric disability. In addition, current treatment records should be identified and obtained before a decision is made in this case. Accordingly, this appeal is REMANDED for the following action: 1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter pertaining to the claim for service connection for a psychiatric disability, to include PTSD. 2. Identify and obtain any outstanding VA and private treatment records not already of record in the claims file. Any additional treatment records identified by the Veteran should be obtained and associated with his claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. He is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disability, to include PTSD, that he has. The examiner must review the claims file and must note that review in the report. The Veteran's lay testimony alone is not a sufficient basis to determine that he had a psychiatric disability that pre-existed his active service. Based on the examination results and the review of the record, the examiner should identify any and all diagnoses of psychiatric disabilities, to include PTSD. Once all diagnoses have been identified, the examiner should provide the following opinions: a) Did the Veteran have such a disability that clearly and unmistakably existed prior to his active service? If so, was any such pre-existing disability clearly and unmistakably not aggravated by active service? [Aggravation means worsened beyond the natural progression of the disease.] b) With regard to any such diagnosed disability not found to clearly and unmistakably exist prior to the Veteran's service, the examiner should opine as to whether there is a 50 percent or greater probability that the disability is related to active service, to include his documented mental health treatment sustained therein. In answering these questions, the examiner must specifically address the relevant service treatment records (including the August 1996 enlistment examination and the August 1999 separation examination) and all relevant post-service treatment records. Also, the examiner should assume that, as the Veteran has asserted, he was the victim of a physical and/or sexual assault during service. The rationale for all opinions expressed must be provided. If the Veteran is unable to attend, or fails to report for, the scheduled VA examination, his claims file should be forwarded to the VA Medical Center so that an examiner with sufficient expertise may review the claims file and provide the requested opinions. 4. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the issue of entitlement to service connection for a psychiatric disability, to include PTSD. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and return the claim to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2015). He is also advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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) (2015).