Citation Nr: 1301084 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-22 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and bipolar disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to August 1984 and from March 2003 to June 2004. She also served in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claim in January 2010 and again in September 2011 for additional development of the evidence. The Board also notes that the Veteran perfected appeals as to the rating assigned for hypertension and as to entitlement to service connection for a gastrointestinal disability. The Board issued a decision as to the hypertension issue in September 2011 and remanded entitlement to service connection for a gastrointestinal disability. During the course of the remand service connection was awarded, via the October 2012 rating decision, for hiatal hernia. As such, the only issue remaining on appeal is entitlement to service connection for an acquired psychiatric disorder. As noted in the January 2010 Board Remand, the issue of entitlement to service connection for a respiratory disorder was raised by the Veteran in April 2008. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. While the Board regrets the additional delay, 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 As previously noted, in its May 2005 rating decision, the RO denied service connection for an acquired psychiatric disorder finding that any such disability had preexisted service and was not permanently aggravated thereby. The Veteran disagreed with that decision, asserting that although she had been treated for depression prior to service, she had not suffered from PTSD or bipolar disorder. In the prior remand, the Board explained that additional development was required in order to determine the Veteran's service status at the time her psychiatric disorder first manifested. As the evidence reflects that the Veteran is claiming service connection for disability potentially resulting from her period of service as a National Guardsman, the outcome of this case could turn on the nature of the Veteran's National Guard duty and whether it amounts to "active military, naval, or air service." 38 U.S.C.A. § 101(2), (22), (24). Thus, the Board remanded the matter to clarify the Veteran's service dates, branch of service, and all periods of any active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA). On remand, the Veteran's complete military personnel records, to include all National Guard personnel records, were to be obtained and associated with the claims folder. Also, the Board noted that although the agency of original jurisdiction obtained the Veteran's service treatment records (STRs) from her first period of active duty service, it does not appear that her STRs from her second period of active duty have been requested. Although the claims folder contains copies of STRs submitted by the Veteran, the Board cannot be sure that it has before it the Veteran's complete STRs. Again, as noted by an April 2010 VA mental health examiner, a record from the Winn Army Hospital was incomplete, with pages "obviously missing." Thus, the Board remanded the matter, instructing the AOJ to contact the National Personnel Records Center (NPRC), or any other appropriate agency, and attempt to obtain the Veteran's complete STRs from her military service from March 2003 to June 2004. Following the Board's remand, in October 2011, the AMC first sent a letter to the Adjutant General, Military Division, in Atlanta, Georgia. Another letter was sent to the Department of Defense, Military Division, to two different addresses in Atlanta, Georgia. The AMC also submitted an online Official Military Personnel File (OMPF) request. In January 2012, the AMC requested copies of records and verification of service from the State Adjutant General, Georgia Army National Guard, in Marietta, Georgia. In January 2012, a letter was received from the Georgia Army National Guard Joint Force Land Component, Joint Force Headquarters - Georgia, in Marietta, Georgia. This letter referenced all of the requests from the AMC and indicated that the National Guard records are stored in the State Archives according to date of discharge. The letter then requested that the AMC provide the Georgia Army National Guard Joint Force Land Component, Joint Force Headquarters - Georgia with the Veteran's date of discharge so that it could initiate a search for the records. This agency sent a second letter to the AMC in February 2012. In response, the AMC sent the State Adjutant General a letter with the Veteran's June 2004 separation date. When no response was received, the AMC wrote additional letters to the State Adjutant General in July 2012 and again in September 2012. No response was received. It is unclear to the Board why the AMC sent three letters to the State Adjutant General instead of responding to the Georgia Army National Guard Joint Force Land Component, Joint Force Headquarters - Georgia. On remand, the AMC must reply to the appropriate source for the needed information. At this time, because the AMC has not done so, the Board finds that the AMC has not substantially complied with the September 2011 remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also, after the October 2012 supplemental statement of the case was issued to the Veteran, which indicated that the National Guard records were unable to be found, she responded. In an October 2012 statement, she followed-up, and indicated that she sent her National Guard records to the Atlanta Regional Office on October 17, 2012. A review of the claims file, both paper and electronic, reveals that there are no records associated with the file that were submitted by the Veteran to the RO on October 17, 2012. In her follow-up statement, the Veteran indicated that if these records were lost, she could send them to VA again. On remand, the AMC should attempt to locate and associate with the claims file any records submitted by the Veteran to the RO on October 17, 2012. If these records are not found, the AMC or RO should obtain another copy from the Veteran. Accordingly, the case is REMANDED for the following action: 1. Respond to the January 2012 and February 2012 letters from the Georgia Army National Guard Joint Force Land Component, Joint Force Headquarters - Georgia, in Marietta, Georgia. The RO or AMC should respond to this particular department and provide the Veteran's separation date so that the complete records can be obtained in order to satisfy the Board's September 2011 remand directives. Associate all records obtained with the claims file. If the search for this evidence leads to negative results, the RO should notify the Veteran of this fact, explain the efforts taken, describe further action (if any) to be taken, and afford her the opportunity to respond. 2. Associate with the claims file the submission from the Veteran to the RO dated October 17, 2012, which was referenced in the Veteran's October 29, 2012, Statement in Support of Claim. If the RO and/or AMC cannot locate this submission, request that the Veteran resubmit the records. Associate all records obtained with the claims file. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claim on appeal in light of pertinent evidence (to particularly include all that added to the record since the last adjudication of the claim) and legal authority. If the benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. 2012). _________________________________________________ L. M. BARNARD Acting 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) (2012).