Citation Nr: 1005341 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 07-06 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from February 1969 to October 1970. He received the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. 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 In a VA Form 9, Appeal to Board of Veterans' Appeals, received in February 2007, the Veteran indicated both that he did not want a Board hearing, and that he did want a Board hearing at a local VA office. In correspondence received in January 2010, the Veteran clarified his VA Form 9 choices, and indicated that he was requesting a videoconference Board hearing. Under applicable regulation, a hearing on appeal will be granted if a Veteran, or his or her representative, expresses a desire to appear in person. 38 C.F.R. § 20.700 (2009). The importance of responding to a request for a hearing is recognized under 38 C.F.R. § 20.904(a)(3) (2009), as a Board decision may be vacated when there is a prejudicial failure to afford an appellant a personal hearing. As the appellant has now requested a Board hearing, the Board finds that a remand is necessary to schedule a videoconference hearing before a Veterans Law Judge of the Board at the local RO. In addition, the evidence of record reflects that the Veteran applied for Social Security disability benefits. The claims file does not contain any Social Security Administration documents regarding the Veteran's application. The Board finds that such records may be useful. It is the responsibility of the VA to obtain any relevant records from the Social Security Administration. Murincsak v. Derwinski, 2 Vet. App. 363 (1992 Also, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in the context of a claim to reopen, the Secretary must provide the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In VA correspondence, dated in May 2004, VA informed the Veteran that his claim was previously denied in 1991, and that new and material evidence was needed to reopen his claim. The correspondence did not inform the Veteran that his claim had been previously denied because the evidence did not reflect a diagnosis of PTSD and because the evidence did not show that his dysthymic disorder and substance abuse condition occurred in service or were casually related to service. In light of the Kent decision, the May 2004 VCAA notification letter sent to the Veteran is insufficient, and VA should send the Veteran complete VCAA notice. Finally, the Board notes that VA's address of record for the Veteran is different than the address to which his accredited represented wrote to him in January 2010. Therefore, VA should contact the Veteran's accredited representative to confirm the most recent address for the Veteran. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2009), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Kent v. Nicholson, 20 Vet. App. 1 (2006), and any other applicable legal precedent. Notice of the scheduled hearing must be sent to the Veteran's most recent address of record, after confirmation of such address with the Veteran's accredited representative. The Veteran should be informed that his claim was previously denied in January 1991, the last final denial with regard to the claim, because there was insufficient medical evidence of a diagnosis of PTSD, and because his dysthymic disorder and substance abuse disorder were not noted in service and not causally related to active service; therefore, his claim cannot be reopened without evidence of the above. 2. Contact the Social Security Administration and obtain a copy of that agency's decision which adjudicated the Veteran disability benefits, including all medical records used to make the decision. 3. If additional evidence is received, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and afford the appropriate opportunity to respond. 4. If the benefit sought remains denied, the appellant should be scheduled for a videoconference hearing before a Veterans Law Judge of the Board at the local RO, unless otherwise notified by the appellant or his representative. Notice of the scheduled hearing must be sent to the Veteran's most recent address of record, after confirmation of such address with the Veteran's accredited representative. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ U. R. POWELL 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) (2009).