Citation Nr: 1302168	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  09-37 252A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina



THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD).



REPRESENTATION

Appellant represented by:	South Carolina Office of Veterans Affairs



ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1967 to May 1969.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Board remanded the claim for service connection for an acquired psychiatric disorder for further development in December 2011.  The case has since been returned to the Board for appellate review.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

In the December 2011 remand, the Board directed the RO/AMC to develop the Veteran's expanded claim of entitlement to service connection for an acquired psychiatric disorder, including all necessary notification and assistance.  Following the completion of all development, the RO/AMC was instructed to issue a Supplemental Statement of the Case (SSOC) if the benefit continued to be denied.  It was specifically noted that the SSOC should include the amended version of 38 C.F.R. § 3.304(f) in the statement of laws and regulations.

A review of the record shows that a SSOC was issued in August 2012 SSOC, but it did not provide the amended version of 38 C.F.R. § 3.304(f).  Moreover, there is no indication in the documents sent or received by the AMC following the December 2011 remand that the Veteran was otherwise provided the amended regulatory provision.

The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  The Court also indicated that, if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to insure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, substantial compliance with the Board's remand instructions, rather than strict compliance, is required.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

The Board notes that it did provide a portion of 38 C.F.R. § 3.304(f) in the body of the December 2011 remand.  Nonetheless, there was not substantial compliance with the entirety of the remand instructions - specifically, providing the Veteran with the complete version of 38 C.F.R. § 3.304(f) in the SSOC.  Therefore, unfortunately, the Board finds that another remand is necessary so that this additional development may be accomplished.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should provide the Veteran with all outstanding, necessary notice in regard to his claim for service connection for a psychiatric disorder, including PTSD, to include providing the Veteran with the amended version of 38 C.F.R. § 3.304(f).

2.  After completing the above action, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraph.

3.  When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).



_________________________________________________
JESSICA J. WILLS
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).