Citation Nr: 1130004 Decision Date: 08/12/11 Archive Date: 08/23/11 DOCKET NO. 05-24 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a variously diagnosed psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1965 to May 1967, and from October 1972 to November 1975 had several periods of active duty for training (ACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In March 2007, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In June 2007 and in March 2010, the case was remanded for additional development and to satisfy notice requirements. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on her part is required. REMAND The Board remanded this claim in March 2010, finding that development for pertinent treatment records had not been completed in accordance with its June 2007 remand. Upon careful review of the record, the Board finds that the development remains incomplete. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). In particular, the Veteran previously indicated that she had received treatment from the Biloxi Vet Center, and that records of such treatment would be pertinent to her claim. As Vet Center records are constructively of record (see Bell v. Derwinski, 2 Vet. App. 611, 613 (1992)), the Board instructed that any reports generated by the Veteran's sessions at the Biloxi Vet Center should be secured for the claims file. In response to this instruction, the AMC sent the Veteran a March 2010 Veterans Claims Assistance Act of 2000 (VCAA) notice letter stating that it would be her responsibility to ensure that treatment records from the Biloxi Vet Center were received. However, such information is incorrect as the burden for obtaining records in the custody of a Federal department or agency falls on VA, and not the Veteran. Regardless, the AMC did attempt to obtain treatment records from the Biloxi Vet Center. See May 2010 request letter. However, it does not appear from the record that the Biloxi Vet Center ever responded to the AMC's May 2010 request, nor were any follow-up requests made to obtain those records. Under 38 C.F.R. § 3.159(c)(2), VA will make as many requests as necessary to obtain relevant records from a Federal department or agency, unless it concludes that the records sought do not exist or that further efforts to obtain the records would be futile. Similarly, under 38 C.F.R. § 3.159(c)(1), VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency; such reasonable efforts generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. The Veteran advised that in April 2007, she began treatment with P.R. at East Bay Psychiatry & Associates, LLC, and that subsequently P.R. transferred her practice and medical records to Coastal Counseling & Consulting. As records from P.R. would likely contain pertinent information/evidence, the Board requested that such records be secured. In the Board's March 2010 remand, it was acknowledged that two attempts (in May 2009 and in July 2009) had already been made to secure these private treatment records, but nonetheless requested (in light of the Veteran's claim being remanded for additional development anyway) that another attempt be made to secure private treatment records from P.R./Coastal Counseling & Consulting. The Board further instructed that if the records were not received pursuant to VA's request, the Veteran was to be advised that ultimately it was her responsibility to ensure that these records were received. A review of the claims file does not show that the AMC ever requested that the Veteran submit a new release of authorization for private treatment records from P.R./Coastal Counseling & Consulting, nor did it make any attempts to obtain such records. Instead, the AMC simply advised the Veteran in its March 2010 VCAA notice letter that it would be her responsibility to ensure that these records were received. Such action does not comport with the instructions in the Board's March 2010 remand. While the Board regrets the continued delay in this case, it is clear that additional development is required in order for VA to comply with its duty to assist under 38 C.F.R. § 3.159(c). The Veteran is again advised that governing regulation provides that where evidence requested in connection with an original claim is not received within a year of the request, the claim will (emphasis added) be considered abandoned (and the appeal in the matter would be dismissed). See 38 C.F.R. § 3.158(a). Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider(s) of any additional psychiatric treatment or evaluation she has received, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO must (as the Board's previous remand instructed) obtain complete clinical records of all such treatment and evaluation from sources identified by the Veteran, specifically including records of any individual and group therapy sessions the Veteran has attended at the Biloxi Vet Center. If such records are unavailable, the reason for their unavailability must be explained for the record. The RO should also attempt once more to secure private treatment records from P.R./Coastal Counseling & Consulting. If the records are not received pursuant to the RO's request, the Veteran should be advised that ultimately it is her responsibility to ensure that these records are received, and that if she does not co-operate her claim would be processed under 38 C.F.R. § 3.158(a).. 2. The RO should arrange for any further development suggested by the results of the development sought above, and then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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) (2010).