Citation Nr: 1119294 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 01-07 771A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a psychiatric disorder including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to September 1959. This matter comes before the Board of Veterans' Appeals (Board) from a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO, among other things, denied entitlement to service connection for stress. The issue was subsequently recharacterized as indicated on the title page. In September 2003, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. In August 2004, the Board denied the claim. In March 2006, counsel for the Veteran and VA filed a Joint Motion with the Court to vacate and remand the August 2004 Board decision. In a March 2006 Order, the Court granted the Joint Motion. In August 2007 and October 2010, the Board remanded the claim to the RO for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's October 2010 remand explained that the parties to the Joint Motion had found that a remand was warranted in part because of the lack of an attempt to obtain records from Dr. John P. McClain in San Jose, California. The Board noted that the Veteran had submitted an internet page with Dr. McClain's address in San Jose, California but indicated he was unable to contact Dr. McClain. The Board instructed that, based on the Joint Motion, the August 2007 remand instructions, and 38 C.F.R. § 3.159(c)(1), which contemplate that VA will assist a Veteran who has the name and address of a physician but is unable to contact the physician, a request should be made to Dr. McClain at the address listed on the internet page. However, the AMC requested that the Veteran authorize and consent to release information from Dr. McClain. In his January 2011 authorization and consent to release form (VA Form 21-4142) submitted in response, the Veteran indicated that authorization was already on file and he had sent all of the information he had. In its March 2011 supplemental statement of the case (SSOC), the AMC indicated that it had satisfied all remand directives and that it did not request records from Dr. McClain because the Veteran stated in his January 2011 response that he had sent all of the information he had. The Board appreciates the AMC's efforts in this case, and regrets any failure to communicate its remand instructions clearly. The Board finds that the AMC has enough information to make a request for Dr. McClain's records on behalf of the Veteran, pursuant to 38 C.F.R. § 3.159(c)(1) (requiring VA to make an initial and follow up request for private records if adequately identified). The internet page submitted by the Veteran indicates that Dr. John P. McClain is located at 25 N. 14th Street, San Jose, California 95122, and his phone number is (408) 293-1114. The Board takes judicial notice of the fact that an internet search conducted through the search engine Google on May 9, 2011, consisting of the terms "John P McClain MD San Jose California," produced a result from www.doctortree.org which listed Dr. John P. McClain, and that clicking on the link resulted in the same information as the internet page submitted by the Veteran (which was from a different web site). This suggests to the Board that it is possible to contact Dr. McClain. The Board is therefore required to again remand the claim to ensure compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board imposes upon VA a concomitant duty to ensure compliance with the terms of the remand; where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance). The AMC should request treatment records relating to the Veteran from Dr. McClain at 25 N. 14th Street, San Jose, California 95122 without requesting or obtaining any further information from the Veteran. In reviewing the claims file, the Board notes that, in his February 2002 response, Dr. Blinder indicated that the Veteran was a patient of his in the 1960s for about 6 months, and that he had treated him for PTSD. Dr. Blinder indicated that he did not keep records more than 10 years, but that he remembered the Veteran and could provide more details if required. Given the circumstances of this case, the Board finds that a follow up letter to Dr. Blinder is warranted, requesting any information that he could remember about the Veteran, including whether his PTSD was related to any claimed military service stressor, and, if so, to identify the nature of such stressor. The Board notes that the Veteran had previously authorized the release of information from Dr. Blinder, and additional authorization is therefore unnecessary. Rather, as with Dr. McClain, a request can be made to Dr. Blinder without any additional action on the part of the Veteran. In his April 2011 post remand brief, the Veteran's representative noted that the AMC had not requested the specified information, and requested another remand for the AMC to request these records. For the above reasons, the Board will grant this request, and also finds that additional information should be requested from Dr. Blinder. Accordingly, the case is REMANDED for the following action: 1. Send a letter to Dr. John P. McClain at 25 N. 14th Street, San Jose, California 95122 requesting that he send all treatment records relating to the Veteran or indicate that he is unable to do so. Should Dr. McClain indicate that he is unable to send the records, notify the Veteran and take action in accordance with 38 C.F.R. § 3.159(e). 2. Send a letter to Dr. Blinder requesting that he provide any additional information he is able to provide regarding his treatment of the Veteran, as he indicated in his February 2002 letter, including whether the Veteran's PTSD was related to an in-service stressor and, if so, to identify the stressor. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The Veteran 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. 2010). _________________________________________________ H. N. SCHWARTZ 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).