Citation Nr: 0812674 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 04-03 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The veteran had active military service from May 1954 to November 1957. In a May 1991 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, denied the veteran's claim for service connection for post-traumatic stress disorder. The veteran did not appeal that decision, which became final. In September 1994, May 1997, November 1997, and August 1999 rating decisions, the RO denied the veteran's petitions to reopen the previously denied claim for service connection for post-traumatic stress disorder. Although notified of each of the denials, the veteran did not perfect an appeal of the decisions, which became final. In October 2002, the veteran again sought to reopen his claim for service connection for post-traumatic stress disorder. This matter initially came before the Board of Veterans' Appeals (Board) from a June 2003 rating decision by the RO that denied the veteran's petition to reopen a previously denied claim of service connection for post-traumatic stress disorder, finding that no new and material evidence had been submitted. The Board remanded the matter in April 2006 for further notification, evidentiary development, and adjudication. After completing the required notification and partially completing the required evidentiary development, the Appeals Management Center (AMC) re-adjudicated the claim and again denied the veteran's petition to reopen via the issuance of a supplemental statement of the case (SSOC) in November 2007. The veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO in September 2003, the transcript of which is of record. Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the veteran's claim for service connection for post-traumatic stress disorder. This is so because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Hence, the Board has characterized the claim for service connection for post-traumatic stress disorder as a claim to reopen. REMAND In April 2006, the Board remanded the veteran's claim to obtain records from VA medical facilities at which the veteran had been treated since April 1999. In February 2007, the AMC requested records from the VA Puget Sound Health Care System in Seattle, Washington. In a March 2007 response, a handwritten note was included that appears to have informed the AMC that the veteran had additionally been seen at the Sioux Falls VA medical center (VAMC) on July 19, 2004; at the El Paso VAMC on January 5, 2006; at the Black Hills VAMC on April 28, 2003; and at the Amarillo VAMC on April 20, 2005. It does not appear, however, that the AMC attempted to obtain records of the veteran's treatment from any of the above- listed facilities, and the only such records currently associated with the veteran's claims file are treatment notes from April 2003 treatment at the Black Hills VAMC. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified VA medical records may have a bearing on the veteran's petition to reopen his claim of service connection for PTSD, the AMC must attempt to obtain the above-identified medical records, along with any other examination or treatment records since April 1999, from the Sioux Falls, El Paso, Black Hills, and Amarillo VAMCs and associate any records obtained with the claims file. The Board notes in particular that, in remanding the veteran's claim in April 2006, the Board specifically instructed the originating agency to seek records from all VAMCs at which the veteran has obtained treatment since April 1999. As such, the Board again emphasizes that future adjudication of the veteran's petition to reopen the previously denied claim for service connection PTSD must include consideration of all identified VAMC treatment records. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders). The Board also notes that the February 2008 letter it sent to the veteran notifying him that his appeal had been returned to the Board's docket was returned to the Board as undeliverable. Review of the veteran's file indicates that this letter was not sent to the veteran's last known address, which was submitted by the veteran's representative via an August 2006 letter. However, as the case is being remanded, the Board concludes that it is unnecessary at this time to provide the veteran with the notification in question. The actions identified herein are consistent with pertinent duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. In view of the foregoing, this case is REMANDED for the following action: 1. The veteran and his representative should be sent a letter requesting that the veteran provide sufficient information, and if necessary authorization, to enable any additional pertinent evidence not currently of record relating to the veteran's claimed PTSD to be obtained. The letter should also invite the veteran to submit any pertinent evidence in his possession and explain the type of evidence that is his ultimate responsibility to submit. 2. The agency of original jurisdiction (AOJ) should obtain from the Sioux Falls, El Paso, Black Hills, and Amarillo VAMCs any available medical records pertaining to the veteran's examination or treatment at those facilities since April 1999. In particular, the AOJ should obtain reports of the veteran's treatment at the Sioux Falls VAMC on July 19, 2004; at the El Paso VAMC on January 5, 2006; at the Black Hills VAMC on April 28, 2003; and at the Amarillo VAMC on April 20, 2005. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2007) as regards requesting records from Federal facilities. Any other sources of treatment records identified by the veteran should also be contacted. All records and/or responses received should be associated with the claims file. 3. After securing any additional records, and after undertaking any other development deemed appropriate, the AOJ should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 (West 2002 & Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).