Citation Nr: 1313755 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-26 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a variously diagnosed psychiatric disorder, to include posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant, spouse, and M.V. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1954 to April 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, a hearing was held before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded to the RO in August 2012. The issue on appeal was characterized as service connection for PTSD. Since the records shows another psychiatric diagnosis, and in light of the U.S. Court of Appeals for Veteran's Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it has been recharacterized as stated on the preceding page. The Veteran initiated appeals of denials of service connection for asbestosis, sleep apnea, and residuals of frostbite of the bilateral lower extremities. He withdrew his appeals pertaining to asbestosis and sleep apnea in March 2009. An August 2009 DRO decision granted him service connection for residuals of frostbite of both lower extremities; consequently, these matters are not before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND A review of the record found that this matter is not ripe for appellate review. There is conflicting medical evidence regarding whether or not the Veteran has a psychiatric disorder that is related to his service. In support of his claim he has submitted statements from E. Alcantar, M.D., who in March 2007 stated that the Veteran has PTSD, and in October 2009 stated that the Veteran has depression and probable PTSD, and that it was his opinion that such disorders are related to the Veteran's service in Korea, including the harsh weather he endured these and his observations of the aftermaths of war, such as starvation of the civilian population. Dr. Alcantar indicated that he has treated the Veteran since 2001. He did not fully explain the rationale for his opinions. The probative value of medical evidence is determined in part by the rationale provided and also in part by factual data that were considered. Therefore, the records of the treatment he provided to the Veteran are pertinent evidence that must be secured. The records of the Veteran's treatment by Dr. Alcantar are not associated with the record. In August 2012, pursuant to the Board's remand the Veteran was asked to submit Dr. Alcantar's records or to submit an authorization for VA to obtain them on his behalf.; he was advised he had a year to respond. He has not yet responded; the year he was afforded to do so has not lapsed. Nonetheless, the case was returned to the Board (with development pending). As the case was prematurely returned to the Board, with action sought by a prior remand not completed, it must be returned to the RO for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is aware that this case has been advanced on its docket. However, expedited handling of this case is entirely within the Veteran's control. He can expedite the process by a prompt response (or if such is his intent, indicating that he will not provide the authorizations sought, and waiving the remainder of the year period provided for such purpose). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should again seek from the Veteran authorization for VA to secure for the record from Dr. Alcantar the complete clinical records of all evaluations and treatment he has provided the Veteran since 2001. The RO should obtain such records, and then arrange for any further development suggested by the information therein. If the Veteran does not provide the release requested (or submit the records himself), the claim must be processed further under 38 C.F.R. § 3.158(a) (2012). If Dr. E.A. does not respond to the RO's request for records sought with the Veteran's authorization, the Veteran should be so advised, and advised further that ultimately it is his responsibility to ensure that private medical records are received. 2. The RO should then review the record and readjudicate the claim (to encompass all psychiatric diagnoses shown by the record), under 38 C.F.R. § 3.158(a), if applicable (i.e., dismissing the claim as abandoned). If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 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). _________________________________________________ George R. Senyk 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).