09-26 009
09-26 009
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served on active duty Oct 1983–Feb 1986 and appeals denial of service connection for an acquired psychiatric disorder, including PTSD.
- Original RO rating decision (Feb 2008) appealed; case remanded by the Board in Sept 2013 and Feb 2016 for further development and VA examination; remand expanded claim to an acquired psychiatric disorder per Clemons.
- Veteran delayed a scheduled VA examination in March 2016 because he was undergoing chemotherapy and did not respond to subsequent RO contact; AOJ made no further scheduling attempts.
- The record contains multiple VA psychiatric diagnoses and treatment notes referencing in-service situational stress reactions, depression, personality disorder findings, and a March 2007 note of undiagnosed bipolar disorder during service.
- The Board found the Veteran’s chemotherapy constituted good cause to reschedule the exam and identified outstanding VA and private treatment records that the AOJ must obtain.
- The Board remanded (not a final decision) directing the AOJ to obtain records, provide an examiner with verified in-service stressor info, conduct a comprehensive psychiatric exam, and provide a supplemental SOC if benefits are not granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for acquired psychiatric disorder (including PTSD) | Veteran contends psychiatric disorders (various diagnoses) are related to service and seeks VA exam and service-connection adjudication | VA/RO had previously denied claim and had not completed full development; exam and records missing | Remand ordered for full development and VA examination to determine diagnoses and nexus to service |
| Scheduling/rescheduling of VA examination | Veteran requested reschedule due to chemotherapy (good cause) and thus should be rescheduled | AOJ attempted initial scheduling but made no further scheduling attempts after Veteran failed to respond | Board found chemotherapy constitutes good cause; AOJ must reschedule exam and warned Veteran that failure without good cause will allow decision on record |
| Duty to obtain outstanding VA/private treatment records | Veteran reported private prescriptions and multiple VA treatments; seeks inclusion of all treatment records | AOJ had incomplete retrieval of VA treatment records and needs to obtain missing records | Remand directs AOJ to obtain specified VA facility records and any private psychiatric treatment records after requesting provider info/authorizations |
| Adequacy of medical examination and nexus opinions | Veteran needs an examination addressing all psychiatric diagnoses and nexus to service (including consideration of in-service stressors) | Prior record lacked a complete exam addressing all listed diagnoses and service entries | AOJ must provide examiner all pertinent records, require diagnoses listing, nexus opinions (including for personality disorder whether a superimposed disease occurred), PTSD linkage to verified stressors, and rationale for opinions |
Key Cases Cited
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (permitting broadened claims analysis where claim reasonably encompasses related disabilities)
- Wood v. Derwinski, 1 Vet. App. 190 (1991) (duty to assist not unidirectional; claimant must cooperate with development)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence after remand)