Citation Nr: 0810780 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 03-22 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD J. M. Macierowski, Associate Counsel INTRODUCTION A motion to advance this case on the Board's docket was received and granted by the Board in March 2005, for good cause. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). An April 2005 Board decision denied entitlement to service connection for post-traumatic stress disorder (PTSD). The veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Consequent to an April 2006 Order granting an April 2006 Joint Motion for Remand (Joint Motion), the veteran's appeal was remanded to the Board. A letter was sent to the veteran and his attorney on June 20, 2006, in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. A letter was received from the veteran's attorney in August 2006, noting that the veteran had no additional information to submit, requesting immediate readjudication of his appeal. The Board remanded the veteran's appeal in October 2006 for additional development, and was recertified to the Board in March 2008. The appeal is again remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND The Board's October 2006 Remand in this case, in conjunction with the Court's April 2006 Joint Remand, contained three action items for the RO. The first, notifying the veteran of the holding in and elements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was accomplished in an October 2007 letter. However, there is no evidence that the remaining two directives (obtaining additionally identified records with which the veteran could substantiate his claim for PTSD, or the submission of a Joint Services Records Research Center (JSRRC) request to verify the veteran's claimed stressors) were fully accomplished. As directed by the October 2006 Remand, the RO sent the veteran a letter in October 2007 indicating the documentary means by which he could substantiate his claim for service connection. Absent a response from the veteran, the RO issued a supplemental statement of the case in January 2008. Shortly thereafter, the veteran submitted an additional stressor statement and two separate documents indicating treatment for PTSD at a private facility as well as two VA facilities. The RO issued an additional supplemental statement of the case in February 2008. In the latter supplemental statement of the case, the RO acknowledged receipt of the veteran's indication of existing pertinent records, but essentially stated that there was no need to obtain them as there was already a diagnosis of PTSD of record. The Board disagrees. VA's duty to assist, at its core, exists so that all pertinent records, especially medical records, will be considered in adjudicating a claim for benefits. It is impossible to know whether the records identified by the veteran in his January 2008 letter would be pertinent to the issue on appeal without review. That notwithstanding, the veteran failed to indicate the dates on which he was treated by each of these three facilities. To that end, on Remand, the RO should contact the veteran and indicate that he needs to provide specific dates for treatment at each of these facilities, and then, based on the veteran's response, make a reasonable attempt to obtain these records. Moreover, the veteran's service medical records indicate that he was stationed at the United States Naval Support Facility (USNSF) in Cam Ranh Bay, Vietnam, and with the United States Naval Construction Battalion, Maintenance Unit 302, Cam Ranh Bay, 1970. The October 2006 Remand directed that the RO submit a request to the JSRRC to determine whether the USNSF, or his specific Naval Construction Battalion Maintenance Unit were "co-located with the United States Naval Air Facility (USNAF), Cam Ranh Bay," as previous reports from the JSRRC reflect that the USNAF (including part of the barracks) was subject to rocket attacks in August 1970 and December 1970. Thus, the purpose of this request was to attempt to verify the veteran's stressor that he had been traumatized by incoming rocket attacks in his barracks. However, while it is clear that the RO sent a request to the JSRRC, a copy of that request was not associated with the claims file, as directed by the October 2006 Remand. Additionally, there is no evidence that the RO's submission to JSRRC included the question of whether the USNSF or the veteran's Maintenance Unit were co-located with the USNAF; the JSRRC's response did not address the co-location question, but provided very specific information with respect to attacks occurring prior to the veteran's arrival in Vietnam. On remand, an answer to the co-location question must be obtained from the JSRRC. The Court has stated that compliance by the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In this case, the Board finds that the RO did not fully comply with the terms of the Board's October 2006 Remand. Because the RO has not fulfilled its obligations, this case must be once again remanded. Id. Accordingly, the case is remanded for the following actions: 1. The RO must contact the veteran and request that he identify the approximate dates of his treatment at the private and VA facilities identified in his January 2008 correspondence to the RO. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Specifically, all treatment records from those facilities identified by the veteran pertaining to treatment for PTSD or other psychiatric disorder must be obtained and associated with the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 2. The RO must contact the JSRRC or other appropriate resources, to include the veteran's service department, and request that a determination is made as to whether, for the year 1970, the United States Naval Support Facility, Cam Ranh Bay, and/or United States Navy Maintenance Unit 302, was part of, or co-located with, the United States Naval Air Facility, Cam Ranh Bay. All attempts to secure this evidence, to include the RO's request to the JSRRC, must be documented in the claims file, and all responses received from the JSRRC, and/or other appropriate resources, should be associated with the claims file. 3. After the development requested has been completed, the RO must review the Remand to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. Compliance by the RO is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, if the issue on appeal remains denied, a supplemental statement of the case must be provided to the veteran and his attorney. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). THE BOARD NOTES THAT THE VETERAN'S APPEAL IS ADVANCED ON THE DOCKET. This claim must be afforded expeditious treatment. The law requires that all claims 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).