Citation Nr: 1309879 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-49 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from June 1980 to June 1983 and from June 1989 to June 1993. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from February and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), that, in pertinent part, denied a rating in excess of 60 percent for dermatitis and granted service connection for PTSD and assigned an initial 10 percent rating, effective from October 16, 2008. In November 2011, the Veteran, sitting at the RO, testified during a hearing conducted via videoconference with the undersigned, sitting at the Board's main office in Washington, D.C. A transcript of the hearing is of record. In February 2012, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. In a July 2012 rating decision, the RO denied entitlement to a TDIU. In a September 2012 decision, the Board dismissed the Veteran's claim for an increased rating for dermatitis. At that time, the Board remanded the Veteran's remaining claims to the AMC for additional development The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND As noted above, in September 2012, this case was remanded to the RO/AMC for further development. Unfortunately a review of the evidence in this case reveals that the RO did not comply with the Board's September 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). During the pendency of his appeal, including in November 2008, January 2009, and June 2010, the Veteran advised the RO of his treatment at the Vet Center in Brockton, Massachusetts. In its September 2012 remand, the Board noted that there was evidence of outstanding VA treatment records from the Vet Center. January 2009, and July 2010 signed statements on letterhead stationery from a Vet Center counseling therapist provide the address of the facility. In December 2008 and June 2010, the RO requested records from the Vet Center in Brockton, Massachusetts, but not all the Veteran's treatment records were received, given evidence that he was regularly treated at that facility since January 2008. In a June 2010 VA Form 21-4142, the Veteran provided signed authorization for the RO to obtain records of his treatment at the Vet Center in Brockton. The Board directed the RO/AMC to obtain "all records" regarding the Veteran's treatment at the Vet Center. However, in a September 2012 letter, the AMC merely asked the Veteran to identify "a Vet Center" at which he was treated and complete another VA Form 21-4142. He did not respond to the RO's request. The AMC obtained treatment records regarding the Veteran's treatment at the VA medical centers (VAMCs) in Boston and Providence, dated from January to December 2012. There is no indication that the RO requested records of the Veteran's treatment at the Vet Center, as directed by the Board. Stegall. Accordingly, the case is REMANDED for the following action: 1. Request all records (and not a treatment summary) regarding the Veteran's treatment at The Vet Center, 1041L Pearl Street, Brockton, MA 2301, dated from January 2008 to the present. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. Then, after ensuring any other necessary development has been completed, readjudicate the appellant's claim. If action remains adverse to the appellant, provide him and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant 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. 2012). _________________________________________________ ERIC S. LEBOFF 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).