Citation Nr: 1312642 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 07-05 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction of this case was subsequently transferred to the RO in Montgomery, Alabama. In March 2008, the Board issued a decision which found that new and material evidence had been submitted to reopen the Veteran's claim seeking service connection for an acquired psychiatric disorder, to include depression and PTSD; and remanded the reopened claim for additional development and consideration on the merits by the RO. In September 2011 and October 2012, the Board again remanded the Veteran's claim for additional evidentiary development. 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 Remand is required for compliance with VA's duty to assist the Veteran in substantiating her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the March 2008 and September 2011 Board remands, the RO was asked to obtain additional private treatment records, and then schedule the Veteran for a VA examination to determine the current nature and etiology of any current psychiatric disorder found. In the most recent October 2012 remand, the Board noted that the RO was prevented from completing the requested tasks due to the Veteran's failure to keep the RO properly informed of changes in his mailing address. As a direct result of the Veteran's inaction, his claims file contains multiple failures to report for examination notices, and returned mail marked undeliverable. Moreover, adjudication of this appeal has been delayed for several years. An April 2012 RO memorandum noted that a verified mailing address for the Veteran had been identified. Thereafter, a May 2012 letter was received from the Veteran in which he questioned the validity of his chosen representative in this case, requested help obtaining all of his treatment records, and indicated that he was going to obtain additional private treatment records. Accordingly, the Board directed the RO to make a final attempt to complete the remaining development requested in the Board's prior remands. Pursuant to the Board's October 2012 remand, in correspondence mailed to the Veteran in October 2012, the RO asked the Veteran to verify his current mailing address, provided him with authorizations to complete for the purpose of obtaining additional private treatment records, and provided a declaration of representation (VA Form 21-22 (service organization) and VA Form 21-22a (for accredited agent or attorney)). However, the Veteran failed to respond to the RO's requests. With regard to his VA examinations, in November 2012 the Veteran contacted the RO and requested that the October 2012 VA examination be rescheduled. He stated that he moved and that the notice of examination was sent to his old address and did not get forwarded to him until after the examination. Per his request, the examination was rescheduled and the Veteran was notified by correspondence mailed to his current mailing address in December 2012. However, the Veteran again failed to appear for the second VA examination scheduled in February 2013. Therefore, as noted by the Board in the October 2012 remand, pursuant to 38 C.F.R. § 3.655 (2012), the Veteran's claim could be considered solely on the basis of the evidence of record. In this regard, however, the Board further finds that outstanding VA treatment records should be obtained. In the September 2011 remand, the Board specifically requested that relevant VA treatment records dated from September 1983 be obtained, and in denying entitlement to service connection for an acquired psychiatric disorder, in the February 2013 Supplemental Statement of the Case (SSOC), the RO indicated that it had reviewed treatment records from the Memphis, Tennessee VA Medical Center (VAMC) dated from August 15, 1997, to February 7, 2013. However, a review of the Veteran's claims folders and a search of the Veteran's Virtual VA electronic claims file shows that none of the Veteran's VA treatment records have been associated with either file. According to a February 2013 report, the RO unsuccessfully attempted to upload those records to the Veteran's electronic file. Consequently, as the Veteran's VA treatment records are unavailable for the Board's review and as they might contain information relevant to the Veteran's claim on appeal, on remand, they must be secured and associated with the record. 38 C.F.R. § 3.159(c)(2), (c)(3) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). Although the February 2012 SSOC does reflect the assessment that these records do not contain evidence of "ongoing treatment for your acquired psychiatric disorder to include depression and PTSD," the Board is unable to conclude from this statement that these records do not otherwise contain evidence of relevant diagnoses, statements of medical history, and/or periodic treatment. Accordingly, the case is REMANDED for the following actions: 1. The RO or AMC should undertake appropriate development to obtain any outstanding, pertinent medical records and associate them with the physical OR virtual claims file, to include associating with the claims folder all pertinent treatment records from the Memphis VAMC dated from August 15, 1997, to the present. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. 2. Thereafter, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his service representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is 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). _________________________________________________ Michael J. Skaltsounis 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).