Citation Nr: 19167297 Decision Date: 08/29/19 Archive Date: 08/29/19 DOCKET NO. 13-25 118 DATE: August 29, 2019 REMANDED Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and schizoaffective disorder, is remanded. REASONS FOR REMAND The appellant is a veteran (the Veteran) who had active duty service from June 1971 to January 1974. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2016, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103 (2018). A transcript of the hearing is associated with the claims file. In June 2016, the Board remanded this appeal for additional evidentiary development. Subsequently, in an October 2017 decision, the Board reopened and denied the claim. The Veteran appealed that decision to the Veterans Court. In a January 2019 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision and remanded this issue to the Board for additional development consistent with the Joint Motion. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and schizoaffective disorder, is remanded. In the January 2019, Joint Motion, the parties agreed that, in denying the appeal, the Board did not provide an adequate statement of reasons or bases for its finding that the Veteran failed to report for a VA psychiatric examination, such that no additional development of evidence was warranted under 38 C.F.R. § 3.655(b); and that the Board did not adequately discuss whether good cause existed for the failure to report. Specifically, the only finding that the Veteran was a no-show for a VA examination is a January 5, 2013, mental health examination, which indicates that the examination was for mental health disorders “except PTSD and eating disor[ders]” (Record 01/15/2013). The parties agreed that, despite the indication that the examination that was canceled was for mental health disorders other than PTSD, the Board made no determination as to whether this note was the basis of its finding that the Veteran was a no-show for a VA PTSD examination; and, if this note was the basis for the Board’s finding that § 3.655(b) was applicable. The Board did not explain how the note was indicative that the Veteran was a no-show to a PTSD examination. The Board also failed to address evidence in a February 29, 2016, treatment note, which indicated that the Veteran brought in forms for PTSD, and that the Veteran apparently doesn’t know that the C&P examination is a scheduled event and is done through their office (Record 05/05/2016 at 91). Relatedly, the February 29, 2016, note indicated the Veteran had an appointment in St. Petersburg on March 16, 2016, but there is no indication what disability was scheduled to be evaluated on that date. Finally, the Board did not take into account that the Veteran’s representative requested another examination, and was told by a Board member that the issue of whether he would be granted another examination would depend on what kind of evidence we have submitted and what he says in the stressor statement (Record 03/16/2016 at 13-14). On remand, the Board should address this evidence in determining whether 38 C.F.R. § 3.655(b) is applicable, and whether the Veteran should be provided a new VA PTSD examination. The Board is bound by the findings contained in the Joint Motion, as adopted by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the “law of the case” doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). The Board interprets the agreement of the parties as requiring a remand for another VA examination to determine the nature and etiology of claimed acquired psychiatric disorder. The Board also notes that the Veteran’s representative has argued that the Veteran has a February 2006 diagnosis of PTSD from a private psychiatrist (Record 07/11/2019 at 4). However, such a diagnosis is not of record. Indeed, there are no private (non-governmental) records in the claims file. No such record was listed by the RO on the May 2010 rating decision, on the June 2013 Statement of the Case, or on the November 2016 Supplemental Statement of the Case. Indeed, the Veteran’s attorney did not submit a copy of this record in his July 2019 written argument. Accordingly, an effort must be made to obtain this record. The matters are REMANDED for the following action: 1. Obtain a copy of the February 2006 private diagnosis of PTSD from the Veteran. 2. Provide the Veteran with notice of the personal assault provisions for PTSD claims. 3. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The relevant documents in the claims file should be made available to the VA examiner. The examiner should provide all appropriate diagnoses. The examiner should specifically state whether diagnoses of PTSD and/or schizoaffective disorder are warranted. Regarding each diagnosis, the VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that such diagnosis is causally or etiologically related to the Veteran’s active service. If a PTSD diagnosis is rendered, the examiner should describe the stressor event to which it is related. If a diagnosis of schizoaffective disorder is rendered, the examiner should describe when the disorder first became manifest. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. If the examiner provides a diagnosis of PTSD, take all necessary and appropriate actions to attempt to confirm the stressor event. The results of such actions should be noted in the claims file. 5. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.