Citation Nr: 1108041 Decision Date: 03/01/11 Archive Date: 03/09/11 DOCKET NO. 07-29 615 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 30 percent for the service-connected anxiety, psychoneurosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to April 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs VA RO in Pittsburgh, Pennsylvania, which denied the benefit sought on appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred and this case remanded for action as described below. A preliminary review of the record reveals the Veteran was afforded a VA examination in April 2010 at the University Drive VA Medical Center (VAMC). In January 2011, the Veteran's representative filed a "Motion for Remand," in order for the newly obtained evidence to be considered in the first instance by the RO. As the Veteran is clearly not waiving initial RO adjudication of the April 2010 VA examination report, the appeal must be remanded for the evidence to be reviewed by the RO and for the issuance of a supplemental statement of the case (SSOC). 38 C.F.R. § 20.1304(c)(2010); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board would note that additional VA outpatient treatment records were submitted with a waiver of RO jurisdiction in April 2008. In light of this Remand, these records should also be considered by the RO in preparation of its SSOC. A report of contact with the Veteran's representative dated in November 2010 indicates that the Veteran may in fact be incarcerated. Upon Remand, the RO should seek clarification of this matter. Additionally, if proven true, the RO should obtain any outstanding private treatment records from the pertinent Department of Corrections. 38 C.F.R. § 3.159(c)(1). Ongoing VA outpatient treatment records dated after February 2008 should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(1), (2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, as this matter is being remanded, the agency of original jurisdiction should take efforts to ensure that it provides the Veteran with notice that meets all due process requirements, including those addressed by recent cases from the Court. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2010) are fully complied with and satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) 2. The RO should seek clarification as to whether the Veteran is currently incarcerated in the Department of Corrections. All requests for such information and their responses should be clearly delineated in the claims folder. 3. The RO should obtain any outstanding records not on file pertaining to treatment of the Veteran for his anxiety, psychoneurosis, to include VA treatment records dated from February 2008 to the present and any private treatment records from the Department of Corrections. The necessary consents must be obtained prior to obtaining any private treatment records. All requests for records and their responses should be clearly delineated in the claims folder. An additional request must be made if there is no response to the initial request for records. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence, to include VA outpatient treatment records dated in 2008 and the April 2010 report of VA examination, and legal authority. Adjudication of the claim for a higher evaluation should include specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative a fully responsive SSOC that includes clear reasons and bases for all determinations and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2010). _________________________________________________ STEPHEN L. WILKINS 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).