Citation Nr: 1749073	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-42 373	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


Entitlement to service connection for an acquired psychiatric disability.


Veteran represented by:	Christopher Loiacano, Agent


The Veteran


Dominic Jones, Associate Counsel


The Veteran served on active duty from May 1999 to August 1999, from January 2003 to August 2003, and with additional periods of inactive duty training (INACDUTRA) and active duty for training (ACDUTRA) in the Marine Corps Reserves.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in June 2014.  

This case was most recently before the Board in March 2017.  The Board granted service connection for cervical spine disease and upper thoracic spine disease.  In its decision, the Board remanded the psychiatric claim for additional development.  As noted in the March 2017 decision, the Veteran requested another Board hearing in February 2016.  Nonetheless, in August 2017 correspondence the Veteran withdrew his request.

In an April 2017 rating decision, the RO implemented the Board's grants.  In May 2017, the Veteran disagreed with the initial ratings on three claims in that decision.  The RO is working on developing the appeal of these three issues.  While the issuance of a statement of the case (SOC) is necessary should the claims not be granted to the Veteran's satisfaction, the Board will not take jurisdiction over the claims at this time given their present circumstances. 

The appeal is REMANDED to the agency of original jurisdiction (AOJ).  VA will notify the appellant if further action is required.


The Board finds another remand is warranted.  In March 2017, the Board remanded the claim in order to afford the Veteran a new VA examination for his psychiatric claim.  However, the claims file reflects that the Veteran may have been incarcerated during the period for which this examination was to be scheduled.  The Board finds that a VA examination continues to be important to the adjudication of the Veteran's claim.  Therefore, an attempt should be made to schedule the Veteran for a VA examination.  Recent documents indicate that he may still be incarcerated.  Thus, the provisions for scheduling incarcerated veterans for examinations should be followed.

In light of this remand, update VA and private treatment records should also be obtained.

Furthermore, it does not appear that the claim was readjudicated or that a supplemental statement of the case (SSOC) was issued if the benefit sought was not granted.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant VA and private treatment records not already associated with the claims file.

2.  Thereafter, schedule the Veteran for an appropriate VA examination in connection with his psychiatric claim.  Follow the provisions for scheduling incarcerated veterans as necessary.  The entire claims file should be reviewed by the examiner.

The examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's psychiatric disability had its onset during, or is otherwise related to, service.

A complete rationale must be provided for the opinion offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report.

3.  Finally, readjudicate the issue remaining on appeal.  If the benefit remains denied, issue an SSOC.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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.A. §§ 5109B, 7112.

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, only a decision of the Board 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).

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