Citation Nr: 18140331
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 15-20 448
DATE:	October 2, 2018
ORDER
The September 21, 2018, BVA remand is vacated. 
REMANDED
Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is remanded.
FINDING OF FACT
The September 21, 2018, BVA remand contained an error of fact and was made without review of the transcript from the Veteran’s hearing. 
CONCLUSION OF LAW
The September 21, 2018, Board remand is vacated.  38 U.S.C. § 7104 (a) 38 C.F.R. § 20.904. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1998 to April 2006. 
This matter comes before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision from the Department of Veterans Affairs (VA) Regional office (RO) in Honolulu, Hawaii. 
The February 2013 rating decision denied a claim for service connection for PTSD. Based on the medical evidence of record, and in light of the holding in Clemons v. Shinseki, the Veteran’s claim for service connection for PTSD has been recharacterized as noted above. 23 Vet. App. 1 (2009) (holding that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).
In June 2018, the Veteran was provided a Travel Board hearing before the undersigned Veteran’s Law Judge.  A transcript of the hearing has been associated with the record. 
In September 2018, the Board issued a remand for this matter. 
VACATUR
The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904.
The September 21, 2018, Board remand was made without review of the Veteran’s hearing transcript.  This error is evidenced by the errant passage in the remand stating the Veteran did not appear for his hearing.  The Veteran was present for his hearing.  A transcript of that hearing was made, and subsequent to the September 21, 2018, remand, the transcript of the hearing was associated with the Veteran’s claims file.  As this transcript was not reviewed prior to the issuance of the September 21, 2018, remand, the Veteran was denied his due process of law by the prior remand.  Thus, a vacatur of the September 21, 2018, remand is warranted.
REASONS FOR REMAND
After a review of the whole record, including the June 2018 hearing transcript, the Board finds a remand is necessary in the Veteran’s case. 
The Veteran filed a claim for service connection for PTSD.  The record indicates the Veteran does not have a current diagnosis of PTSD ,as confirmed by VA examinations in January 2013 and May 2016.  Nevertheless, the Veteran’s treatment records indicate the Veteran has been diagnosed with a depressive disorder.  Further, the Veteran’s service treatment records note adjustment disorder with depressive symptoms.  Neither examiner noted this diagnosis in their examination reports.  Therefore, a remand is necessary to provide the Veteran with a new examination to evaluate the nature and etiology of any acquired psychiatric disorder other than PTSD, to include depressive disorder. 







CONTINUED ON NEXT PAGE
The matter is REMANDED for the following action:
Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder other than PTSD, to include depressive disorder.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service diagnosis of an adjustment disorder with depressive symptoms. 
 
C. TRUEBA
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Reed, Associate Counsel