Citation Nr: 1300237 Decision Date: 01/03/13 Archive Date: 01/11/13 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 posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, 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, March 2010, and August 2011, the case was remanded to satisfy notice requirements, and for additional development. FINDING OF FACT In August 2011, pursuant to the Board's remand, the Veteran was asked by the Appeals Management Center (AMC) to again provide releases needed for VA to secure pertinent outstanding evidence necessary to adjudicate her claim of service connection for a variously diagnosed psychiatric disorder, to include PTSD; more than a year has passed, and she has not responded. CONCLUSION OF LAW By failing to submit releases for evidence deemed necessary to properly adjudicate her claim of service connection for a variously diagnosed psychiatric disorder, to include PTSD, the Veteran has abandoned such claim, and her appeal in this matter must also be considered abandoned. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2002); 38 C.F.R. § 3.158(1) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In September 2003, the Veteran was advised of VA's duties to notify and assist in the development of her claim prior to its initial adjudication. September 2003, March 2006 and June 2007 letters explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing. She was also advised of disability rating and effective date criteria. She has had ample opportunity to respond/supplement the record and she has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and partial pertinent postservice treatment records have been secured. [The Veteran's Virtual VA file (VA's electronic data storage system) was reviewed. No pertinent evidence was found therein.] As will be explained below, further pertinent (and perhaps critical) evidence is outstanding. However, such evidence cannot be obtained without the Veteran's cooperation (by producing authorization for release of such records). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the facts and evidence pertinent to a Veteran's claim is not a one-way street). In August 2011, the RO asked the Veteran to provide releases for VA to secure records from a Vet Center and from P.R./Coastal Counseling & Consulting. She has not responded, and further development for such evidence cannot proceed without her cooperation. The RO arranged for a VA examination in this matter in October 2009. The Board observes that the opinion then offered is based on a less than complete factual background. Given the circumstances, VA has met its assistance obligations. No further assistance from VA in the development of evidence is required. B. Legal Criteria, Factual Background, and Analysis Where evidence requested in connection with an original claim or a claim for increase is not furnished within 1 year after the date of the request, the claim will [emphasis added] be considered abandoned. 38 C.F.R. § 3.158(a). The Veteran had indicated that in April 2007, she began psychiatric treatment with P.R. at East Bay Psychiatry & Associates, LLC, and subsequently she continued the treatment at Coastal Counseling & Consulting (where P.R. had transferred her practice). As records of treatment by P.R. were likely to contain pertinent information/evidence, the Board requested that such records be secured. The Board's August 2011 remand acknowledged that the RO had made attempts to secure the Veteran's private treatment records, with no response, but that as the Veteran had not been advised that ultimately it was her responsibility to ensure that private records were received, another attempt to secure the records was necessary. Per the Board's remand instructions, in an August 2011 letter, the AMC requested that the Veteran submit a new form authorizing VA to obtain the private treatment records. To date (more than a year has lapsed since the request), she has not responded. The critical facts at this stage are clear. The Veteran has not provided the release necessary for VA to secure evidence pertaining to her claim seeking service connection for a variously diagnosed psychiatric disorder, to include PTSD. The Board is presented with a less than complete disability picture, made so by the Veteran's failure to cooperate. In such circumstances proper merits adjudication is not possible. The regulation governing in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. Notably, more recently the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 231 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned this claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claim for service connection for a variously diagnosed psychiatric disorder, to include PTSD is abandoned, there is no allegation of error in fact or law for appellate consideration in this matter. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. ORDER The appeal seeking service connection for a variously diagnosed psychiatric disorder, to include PTSD is dismissed. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs