Citation Nr: 0814123 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 97-09 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for post- traumatic stress disorder (PTSD). 2. Whether new and material evidence was received to reopen a claim for entitlement to service connection for a psychiatric disorder, other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from October 1983 to October 1992. He served in Southwest Asia from October 15, 1990, to April 11, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2006, the Board, among other things, remanded the issues on appeal for additional development. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in July 2006 and January 2007. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. A review of the January 2007 VCAA notice shows the veteran was informed of the basis for the denial in the prior decisions and provided notice that described what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denials. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c). In this case, the Board in the April 2006 remand instructions, among other things, requested that appropriate action be taken to obtain VA treatment records identified by the veteran in his February 2005 VA Form 9. The veteran identified VA treatment for PTSD since December 2004 and identified Dr. L.R. and A.A. as his VA care providers. He also stated he was scheduled for additional examinations in March 2005. A review of the record indicates no action has been taken to obtain these records. The Court has held that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be taken to obtain copies of VA treatment records identified by the veteran in his February 2005 VA Form 9. As many requests as are necessary to obtain any relevant records must be taken, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the veteran cannot be obtained, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If the benefits sought remain denied, the veteran and his representative should be furnished a supplemental statement of the case providing all pertinent regulations for claims to reopen received by VA before August 29, 2001. Thereafter, the case should be returned to the Board for appellate review. The appellant 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). _________________________________________________ RENÉE M. PELLETIER 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).