Citation Nr: 0813244 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 99-00 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran had active service from July 1974 to July 1976 and from April 1977 to April 5, 1980. He had additional service from April 6, 1980 to December 2, 1983, but it is not qualifying for receiving Department of Veterans Affairs (VA) benefits because his discharge was under other than honorable conditions as a result of several absences without leave (AWOL). This appeal to the Board of Veterans' Appeals (Board) arose from an August 1998 rating decision of the Boston, Massachusetts, Regional Office (RO). The veteran had a hearing at the RO in March 2001 before a Veterans Law Judge who is no longer employed at the Board. The Board informed the veteran of this in a March 2008 letter, also indicating he consequently had a right to another hearing before the judge that will ultimately decide his appeal. See 38 C.F.R. § 20.707. However, in a March 2008 response from his attorney, it was indicated the veteran does not want another hearing. As the veteran's representative had earlier observed in the October 2006 Informal Hearing Presentation, the veteran's December 1996 application included a petition to reopen his previously denied claim for service connection for a bilateral foot condition. The August 1998 rating decision at issue did not adjudicate this additional claim. Thus, it is referred to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of an issue not yet adjudicated by the RO). In June 2001, the Board remanded this case to the RO for additional development; thereafter, in January 2007 the Board denied the veteran's claims. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2007 order, granting a joint motion, the Court vacated the Board's decision and remanded this case to the Board for further development and readjudication in compliance with directives specified. To comply with the Court's order, the Board in turn is remanding this case to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The joint motion noted that all VA communications to the veteran pursuant to the June 2001 Board remand, to include notification of VA's duties to notify and assist as well as a request for stressor information regarding his PTSD claim and notice of appointment for VA examinations, were sent to incorrect addresses despite him having informed VA of his correct address. Because the veteran was not contacted at his current address, there was not compliance with the directives of the Board's June 2001 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (the veteran is entitled, as a matter of law, to compliance with remand directives). Accordingly, the joint motion concluded the Board must address the presumed prejudicial notice error and remedy any accompanying defect. Inasmuch as the VA communications were erroneously sent to incorrect addresses and, thus, the veteran did not receive notification of VA's duties to notify and assist him with his claims, as well as the request for stressor information regarding his PTSD claim and notice of appointment for VA examinations, the Board finds that another remand is required to provide these opportunities to further develop his claims. Review of the claims file also reflects that, according to a November 1977 letter from an attorney who purported to represent, the veteran was pursuing a claim for benefits from the Social Security Administration (SSA). The claims file does not contain any SSA records. These records, assuming they exist, are potentially pertinent to his claims with VA and therefore should be obtained for consideration in this appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). In addition, as noted in the Board's June 2001 remand, the veteran has testified that he is receiving treatment for PTSD at the VA Medical Center (VAMC) in Providence, Rhode Island, and at the VAMC in Brockton, Massachusetts. These additional records must be obtained before deciding his appeal. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in the constructive, if not actual, possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following development and consideration: 1. Send the veteran a VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 2. With his assistance, obtain all records of VA and/or private treatment that have not already been obtained concerning psychiatric and orthopedic treatment for the claimed disabilities. This request includes all treatment records from the VAMCs in Providence, Rhode Island, and Brockton, Massachusetts. If he has or can obtain these records, himself, then he is encouraged to do so. However, VA will assist him in obtaining this additional evidence if he provides the necessary information (e.g., when and where treated, etc.). 3. Obtain the veteran's SSA records, including all medical records that formed the basis of any decision rendered. The efforts to obtain these records should be documented and any evidence received in response to this request should be associated with the claims folder for consideration. If attempts to obtain these records are unsuccessful and further attempts to obtain them would be futile, then also document this in the file and notify the veteran accordingly. 4. Give the veteran an opportunity to provide additional information regarding his alleged stressors in service, which he believes led to his PTSD. This information should include the approximate dates of the incidents mentioned (the year and within a two- month window), assigned unit to the company level, location, and the full names of others, if any, injured or killed for each of the events in question. The veteran is advised that this information is vitally necessary and that he must be as specific as possible, since without such detailed information, an adequate search for verifying information cannot be conducted. 5. Forward the veteran's stressor information to the United States Army and Joint Services Records Research Center (JSRRC) and any other appropriate records repository for research into corroboration of the claimed stressors. The JSRRC should be provided a copy of any information obtained above. Also follow up on any additional action suggested by JSRRC. 6. After associating with the claims file all available records and/or responses received from each contacted entity, please prepare a report detailing the occurrence of any specific in-service stressors deemed established by the record. This report is then to be added to the veteran's claims file. If no stressors have been verified, then expressly indicate this. 7. If, and only if, a stressor has been verified, schedule the veteran for a VA psychiatric examination. The claims file, a copy of this remand, and a list of the in-service stressor(s) found to be corroborated by the evidence, must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. The examiner must determine whether the veteran has PTSD and, if so, whether any in-service stressor(s) found to be established by the record is the cause of the condition. The examiner should be instructed that only the verified events listed may be considered as valid stressors. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied, and identify the stressor(s) supporting the diagnosis. 8. Also schedule the veteran for a VA examination to determine the etiology of any current disorder of his knees, left and right. Based upon examination of him and review of his pertinent medical history, the examiner is requested to offer an opinion with supporting analysis as to whether the veteran currently exhibits any disorder of either knee and, if so, whether it is at least as likely as not such disorder is related to his active military service or any incident therein (keeping mind the period of qualifying service versus the latter occasion in service when the veteran was AWOL and, therefore, does not qualify for VA benefits). A complete rationale for all opinions expressed should be provided. If the examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated. 9. Then readjudicate the claims in light of the additional evidence. If the claims are not granted to the veteran's satisfaction, send him and his attorney a Supplemental Statement of the Case and give them an opportunity to respond to it before returning the file to the Board for further appellate review. In addition, the Joint Motion advised that, before relying on any additional evidence developed, the Board should ensure that the veteran is given notice that he has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). By this remand, he is provided such notice. The claims 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. 2005). _________________________________________________ KEITH W. ALLEN 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).