Citation Nr: 0811747 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-17 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The veteran served on active duty from April 1970 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2002 and January 2004 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied the veteran's above claims. These issues were the subject of a March 2006 Board decision; however, an October 2007 United States Court of Appeals for Veterans Claims (Court) decision, based on an October 2007 Joint Motion for Remand (JMR), vacated and remanded that March 2006 Board decision, as to the above two issues; therefore they return to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Court, through an October 2007 decision, adopting an October 2007 JMR, indicated several deficiencies in the Board's March 2006 decision as to the above stated issues. As such, the Board finds it has no choice but to remand these issues, in order that development may be undertaken consistent with the prior October 2007 JMR. As to the veteran's claim of entitlement to service connection for PTSD, the JMR indicated that the veteran had not been properly advised of 38 C.F.R. § 3.304(f)(3), which pertains to PTSD claims based on personal assault, and indicates that in such cases, the veteran must be advised that evidence from sources other than the veteran's service records, or evidence of behavior changes, may constitute credible supporting evidence of the stressors, and that the must be provided the opportunity to furnish this type of evidence or advise VA of the potential sources of such evidence. As the Court found that the veteran was not adequately informed of 38 C.F.R. § 3.304(f)(3), this issue must be remanded so the veteran can be adequately informed of this provision. As to the veteran's claim that new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for right ear hearing loss, the JMR indicated that the veteran had been provided conflicting evidence as to the standard of what constitutes new and material evidence; specifically the JMR indicated that the veteran was given a different standard by the RO, as to new and material evidence claims, than the Board. The Board notes that the February 2005 statement of the case provided by the RO contains the exact same standard as the Board's prior March 2006 decision. However, as the Court, via the JMR, apparently found some discrepancy in the notice, upon remand, the veteran should again be provided with the regulation concerning new and material evidence claims, 38 C.F.R. § 3.156 (2007), and informed that this is the correct standard to be applied. As to both issues on appeal, the JMR noted that the veteran was in receipt of Social Security Administration (SSA) benefits, but no attempt had been made to obtain those SSA records and associate them with the veteran's claims file. The U.S. Court of Appeals for Veterans Claims (Court) has held that, where VA has notice that the veteran is receiving disability benefits from SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Baker v. West, 11 Vet. App. 163 (1998) and Hayes v. Brown, 9 Vet. App. 67 (1996). Further, in Tetro v. Gober, 14 Vet. App. 110 (2000), the Court held that VA has the duty to request information and pertinent records from other Federal agencies, when on notice that such information exists. This would include a decision from the SSA. See Tetro v. Gober, supra. As such, on Remand, the RO should obtain any available SSA records pertaining to the veteran, and associate them with his claims file. Accordingly, the case is REMANDED to the AMC for the following action: 1. The AMC should obtain any Social Security Administration (SSA) records pertaining to the veteran. If an attempt is made to obtain such records and no records are available, this should be noted in the veteran's claims file. 2. As to the veteran's claim of new and material evidence for service connection for right ear hearing loss, inform the veteran of the correct legal standard as it pertains to reopening claims, specifically 38 C.F.R. § 3.156 (2007); see also Kent v. Nicholson, 20 Vet. App. 1 (2006). 3. As to the veteran's claim of entitlement to service connection for PTSD, provide the veteran with a copy of 38 C.F.R. § 3.304(f)(3), and inform him that evidence from other sources other than his service records, or evidence of behavior changes, may constitute credible supporting evidence of his stressors. The veteran must also be provided the opportunity to furnish this type of evidence to the VA, or advise VA of the potential sources of such evidence. 4. After the above development has been completed, the AMC must readjudicate the issues on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If any issue on appeal continues to be denied, the veteran and his representative must be provided a Supplemental Statement of the Case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ J. A. MARKEY 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).