Citation Nr: 1017640 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 06-30 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to January 1981. This matter is before the Board of Veterans' Appeals (Board) from a November 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which, in pertinent part, declined to reopen a claim for service connection for PTSD. The Veteran timely filed a Notice of Disagreement (NOD) that same month. The RO provided a Statement of the Case (SOC) in June 2006. In September 2006, the RO received a congressional inquiry along with a letter from the Veteran dated August 2006. The RO accepted the letter as a timely substantive appeal. In a September 2006 Supplemental Statement of the Case (SSOC), the RO reopened the claim for service connection for PTSD but denied this claim on the merits. In October 2008, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration. A transcript of the hearing is associated with the claims folder. On appeal in December 2008, the Board reopened the PTSD claim and remanded it for additional development, to include providing proper VCAA notice, attempting to verify the Veteran's alleged stressors, obtaining VA treatment and Social Security Administration records, and scheduling a VA psychiatric examination. The VLJ who conducted the October 2008 hearing and issued the December 2008 decision no longer works at the Board. In March 2010, the Board advised the Veteran by letter that he had the right to another hearing by the VLJ who will decide his appeal and was asked whether he desired to have a new Board hearing. See 38 C.F.R. § 20.707. He declined shortly thereafter. The issue has been recharacterized to better reflect the evidence. 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 Veteran contends that he has PTSD due to stressors he experienced during service. Specifically, he claims that during boot camp his drill instructors repeatedly beat him and took food off his tray at meal time. The Veteran also claims that immediately after graduation, one of his drill instructors threatened him with physical harm. Another reported stressor includes witnessing a truck accident and the burning deaths of two friends. In a November 2006 correspondence, the Veteran stated that he witnessed two burning bodies after a truck accident. An undated memorandum indicates that the RO contacted Camp Pendleton military police in an effort to obtain an accident report. The RO was informed that all files are destroyed after 5-10 years. In April 2007, the RO requested a copy of the report of the alleged accident from NCIS and the Provost Marshal's Office. The accident date provided was February 1980. Both agencies provided a negative response. In August 2008, the Veteran submitted the names of the two friends who he claims were burned in the truck accident. He also provided an accident date of June 1980. The December 2008 Remand Order instructed the AMC to attempt to verify the alleged truck accident with the United States Army and Joint Services Records Research Center (JSRRC) (formerly the United States Armed Services Center for Unit Records Research (CURR)). A Marine Corps records search is conducted through the Marine Corps Archives and Special Collections (MCASC) and the National Archives and Records Administration (NARA). In letters dated May and June 2009, the AMC contacted the MCASC and requested a command chronology for the Veteran's unit from June 1980. The RO received a negative reply from the MCASC in June 2009. The AMC did not request information from the NARA. Nor did the AMC attempt to research the two soldiers identified by the Veteran as having died in the truck accident. Efforts should be made to verify if PFC Thomas Monahan and/or LCPL Richard Fontenot died in a truck accident in approximately June 1980. The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Undertake all appropriate development to attempt to corroborate the deaths of PFC Thomas Monahan and/or LCPL Richard Fontenot. Any negative response must be noted. 2. Obtain from NARA unit records for June 1980 relating to any motor vehicle accidents and/or casualties. Any negative response must be noted. 3. Review the claim file to ensure that all the foregoing development has been completed and arrange for any additional development indicated. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue an SSOC and provide the Veteran and his representative an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. 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). _________________________________________________ RONALD W. SCHOLZ 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).