Citation Nr: 1823055 Decision Date: 04/16/18 Archive Date: 04/25/18 DOCKET NO. 12-17 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to February 2007. This matter returns to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The matter was before the Board in September 2016, at which time it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its September 2016 remand, the Board instructed the AOJ to provide the Veteran a new VA psychological examination by a psychiatrist or psychologist who had not yet provided an opinion in the case. VA scheduled the psychological examination for December 2016, but the Veteran did not attend. Finding that the Veteran had not provided good cause for his failure to attend, in March 2017 the AOJ decided the Veteran's claim based on the evidence then of record, and once again denied it. Under 38 C.F.R. § 3.655 (2017), if a Veteran does not appear at a scheduled VA examination that is required to adjudicate an original claim, and does not provide good cause for non-appearance, the claim shall be rated based on the evidence of record. However, in early May 2017 the Veteran submitted a statement in support of claim explaining that he had appeared for his examination at the appointed time, but had gone to the wrong VA facility, where he was told to wait-and once the mistake was discovered there was no longer time to travel to the correct facility and undergo the examination. The Veteran asserts that he tried unsuccessfully to reschedule the examination and asked that VA reschedule it. The Veteran has also submitted a statement in support of a separate claim stating that he is available to attend his VA examinations. In light of the above, the Board finds that the Veteran has shown good cause for his non-appearance, and the Board will remand so that the Veteran may be afforded a new psychological examination. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate efforts to obtain outstanding records pertinent to the Veteran's claim and associate them with the claims file. 2. Then, afford the Veteran a VA examination by a psychiatrist or psychologist who has not provided a prior opinion in this case. All pertinent evidence of record must be made available to and reviewed by the examiner, to include the Veteran's case file, including this remand, and the examiner should indicate that such review occurred. Any indicated studies, tests, and evaluations should be performed. Based on the examination of the Veteran and the review of the Veteran's pertinent history, to include a review of the Veteran's statements, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. If the examiner determines that PTSD has been present during the period of the claim, the examiner should identify the elements supporting the diagnosis, including the DSM-5 criteria, to include the stressor or stressors. If the examiner determines that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so. The examiner is further advised that the Veteran's participation in combat has been established. With respect to each additional acquired psychiatric disorder that the examiner determines has been present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated during service or is otherwise etiologically related to service, and if not, whether there is a 50 percent or better probability that the disorder was caused or aggravated by a service-connected disability. If the examiner believes that that there is a 50 percent or better probability that the disorder was aggravated by a service-connected disability, the examiner should attempt to identify the level of disability that existed prior to the onset of aggravation and the extent (if any) to which the disorder was aggravated beyond its normal course. The examiner must provide a full rationale for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The AOJ must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of his claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 (2012), 3.655 (2017). 4. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING 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).