Citation Nr: 21027214 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-28 470 DATE: May 5, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1964 until his honorable discharge in January 1966, with service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board videoconference hearing before a Veterans Law Judge in his September 2019 VA Form 9. However, in October 2020, the Veteran's representative submitted a formal notification that the Veteran wished to withdraw the request for a BVA hearing. Therefore, the Board videoconference hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue of service connection for posttraumatic stress disorder to encompass any acquired psychiatric disability. Entitlement to service connection for an acquired psychiatric disability, to include PTSD. Pursuant to the duty to assist, additional development is needed with respect to the Veteran's claim. The Board notes, in September 2017, the RO requested an examination to determine the nature and etiology of the Veteran's claimed PTSD. The examination was cancelled in October 2017 because "[t]he Veteran did not attend their examination." However, the claims file does not reflect that the Veteran was notified of the requested examination. There was no letter indicating that the facility would notify the Veteran of the date, time, and place of the examination. There was no notice to the Veteran of the consequences for a failure to report for a VA scheduled examination without good cause. In its November 2017 rating decision, the RO, in part, denied the Veteran's claim for service connection for PTSD because the Veteran missed the VA examination scheduled in support of his claim. The Veteran filed a timely appeal. See January 2018 Notice of Disagreement. In May 2018, the RO requested an examination regarding the nature and etiology of the Veteran's claimed PTSD. The examination was cancelled in August 2018 because the Veteran "No Show or Failure to Report." However, the claims file does not reflect that the Veteran was notified of the requested examination. There was no letter indicating that the facility would notify the Veteran of the date, time, and place of the examination. There was no notice to the Veteran of the consequences for a failure to report for a VA scheduled examination without good cause. In the August 2019 Statement of the Case (SOC), the RO continued the denial of entitlement to service connection for PTSD based, in part, on the Veteran's failure to report for the scheduled examination. Although there is a copy of the September 2017 and May 2018 examination inquiries in the claims file, there is no copy of the examination notices that were sent to the Veteran. Thus, it is simply unclear whether the Veteran was properly notified of the scheduled examinations. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Additionally, the Veteran's representative, stated the Veteran failed to report to these examinations because he did not receive notice that they had been scheduled. See January 2021 Correspondence. The Board is aware of 38 C.F.R. § 3.655 regarding action to be taken when a Veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. § 3.655(a)(b). However, based on the above, in consideration of Kyhn, as well the Veteran's willingness to attend a future examination, the Board finds the Veteran should be afforded another opportunity to appear for an examination in connection with his claim, and if he does not report, the file should be properly documented regarding notice of the appointment. The Board reminds the Veteran the duty to assist is not always a one-way street, and he has an obligation to actively participate, to include attending a scheduled examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is advised he is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so may result in denial of his claim or the claim may be evaluated on the evidence of record. See 38 C.F.R. § 3.655. In addition, current treatment records should be identified and obtained before a decision is made regarding the issue on appeal. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain any outstanding VA treatment records and associate them with the claims file. 2. The AOJ should contact the Veteran and confirm his current address so the examination may be scheduled at the appropriate facility. 3. The AOJ should afford the Veteran an examination with an appropriate examiner to determine the nature and etiology of any acquired psychiatric disability, to include PTSD. The Veteran's claims file must be made available to, and reviewed by, the examiner. All indicated studies and testing must be conducted and must be reported in detail. Following review of the claims file, and interview/examination of the Veteran, the examiner is requested to respond to the following: (a) Identify each diagnosed acquired psychiatric disability, whether diagnosed on examination or during the appellate period. (b) Elicit from the Veteran the details of his stressor(s). (c) If a diagnosis of PTSD is warranted, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that PTSD is due to exposure to an actual confirmed or accepted stressor(s) arising out of the Veteran's military service. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. (d) With respect to any other acquired psychiatric disability(ies) found to be present, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability(ies) had its onset in service or is caused by or related at least in part to his military service. In providing the requested opinion, the examiner must address the Veteran's competent lay statements regarding onset, in-service incurrence, and continuity of symptomatology since service separation. The examiner should provide a complete rationale for all opinions offered. If the examiner is unable to provide any requested opinion without resorting to speculation, he/she should provide an explanation as to why this is so, and note what, if any additional evidence would permit such an opinion to be made. 4. The AOJ must send the Veteran and his representative a letter with the date, time, and place of the Veteran's scheduled examination, and include a copy of this letter in the claims file. The letter must detail the consequences of the Veteran's failure to report for the examination. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, Associate Counsel 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.