Citation Nr: 1802543 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-27 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, depression, and bipolar disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from June 1958 to June 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision, sent to the Veteran in February 2008, and issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, on behalf of the RO in Atlanta, Georgia. The Board previously considered this appeal in October 2015, and remanded this issue for further development in order to schedule the Veteran for a Board hearing. In October 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. Additional evidence was received at the hearing and was accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304(c) (2017). The Board considered this appeal again in February 2017, and reopened the claim for PTSD. Having reopened the claim, the Board recharacterized the issue to service connection for an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The issue was then remanded for additional development in order to request updated VA treatment records and to schedule a VA examination. After the development was completed, the case returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required in this case. The Board previously remanded the claim for a VA examination. A review of the claims file reflects a February 2017 exam request form that Veteran was scheduled for a VA examination. A subsequent notification in the file reflects the status as "rejected by contractor" as there was an error as a required field in the request was blank. Another request was issued in May 2017. Although a transaction status history noted this was "working" status, yet another request for the examination was submitted in August 2017. An October 2017 report of general information reflects the RO reached out to QTC to follow up on the examination request as there had been no update in the automated system. The representative indicated the "veteran failed to show" for the examination scheduled in September 2017 and was not sure why the system had not been updated. A letter notifying the Veteran of that scheduled examination is not in his electronic claims file, and it is unclear whether he received this required notice. Given the confusion surrounding the examination and to afford the Veteran every possible opportunity, the Board finds that one more attempt should be made to schedule this examination. That said, the Veteran is reminded that, while VA has a duty to assist him in the development of his claims, he also has a duty to cooperate with VA in this effort. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, the Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of his claim for service connection. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If he fails to report to the re-scheduled examination, the AOJ should obtain and associate with the electronic file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disability. The entire claims file should be reviewed by the examiner. After reviewing the record, the examiner is requested to: a.) Indicate all psychiatric disabilities currently shown, and; b.) Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric condition, to include the PTSD, anxiety, depression, and bipolar disorder that were diagnosed in VA treatment, had its onset in service or is otherwise related to service. The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. The Veteran must be notified of the date, time and place of the examination and advised that failure to report for any scheduled examination may result in the denial of his rating claims. 38 C.F.R. § 3.655 (2017). A copy of the notice letter must be associated with the electronic file, and a courtesy copy sent to the representative. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond before the record is returned to the Board for further review. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).