Citation Nr: 1314042 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-44 430 ) DATE ) ) On appeal from the Department of Veterans Affairs(VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for psychiatric disability other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1999 to July 2005, however, only the period from June 24, 1999 to August 30, 2004 is considered honorable for VA purposes. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision in which the RO denied the Veteran's claim for an acquired psychiatric disorder, to include depression and PTSD. In December 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2009, and in November 2009, the Veteran filed a form that was construed as a substantive appeal. In April 2011, the Veteran and his mother testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. In June 2011, the Board denied service connection PTSD and for a personality disorder. At that time, the Board remanded the matter of service connection for a psychiatric disability other than PTSD to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in an April 2012 supplemental SOC (SSOC)) and returned the matter remaining on appeal to the Board for further consideration. In October 2012, the Board again remanded the claim for service connection for a psychiatric disability other than PTSD to the RO, via the AMC for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in a February 2013 SSOC) and returned the matter to the Board for further consideration. For the reason expressed below, the matter remaining on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. The Board's review of the claims file demonstrates that the RO/AMC did not fully comply with the Board's October 2012 remand instructions regarding outstanding private medical records pertaining to treatment for mental health problems which are pertinent to the issue on appeal. In a June 2011 remand, the Board directed the RO send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. In October 2012, the Board again remanded the claim, directing the RO to furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO was instructed to specifically request that the Veteran provide current authorizations to enable it to obtain all records from the Associated Clinic of Psychology dated from 2009 to the present and for any records generated as a result of the Veteran's participation in Project Pathfinders beginning in 2008 to the present. In January 2013, the AMC provided a letter that was addressed to the Veteran at an address different from the address of record that was used by VA prior to this date and used by the AMC in a subsequent April 2013 SSOC. Although the correspondence was not returned by the United States Postal Service as undeliverable, it is questionable whether the Veteran received the notice. No response from the Veteran was received. Moreover, the AMC requested that the Veteran obtain records or provide authorization for VA to obtain records only from the Associated Clinic of Psychology but did not request records of care at Project Pathfinders. 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). Here, the record raises questions as to whether, as requested in the prior remands, the Veteran actual had the opportunity to submit or to authorize VA to assist obtaining all specific relevant evidence because the RO's letter was incomplete and may have been sent to an incorrect address. Therefore, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In the letter, the RO should specifically request that the Veteran provide, or provide complete signed, current authorizations to enable it to obtain, all records from the Associated Clinic of Psychology dated from 2009 to the present and for any records generated as a result of the Veteran's participation in Project Pathfinders beginning in 2008 to the present. Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for the Veteran to undergo examination or obtaining a medical opinion in connection with the claim, if appropriate) prior to adjudicating the matter remaining on appeal. Finally, as a collateral administrative matter, the Board finds that, while this matter is on remand, the Veteran's desires as to representation should be clarified. In an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) in January 2008, the Veteran designated the Minnesota Department of Veterans Affairs as his representative. The organization has continued to act, and to be recognized, as the Veteran's representative, to include during the April 2011 Board hearing. However, a recent review of the paperless, electronic (Virtual VA) folder associated with the Veteran revealed VA Form 21-22, dated in November 2010, in which the Veteran designated The American Legion as his representative. Although, apparently, this document was completed, but not filed with VA, and the Veteran has identified any other organization as his representative, in light of the November 2010 letter, further action to ensure that the Veteran is afforded due process is warranted. VA recognizes only one organization at a time and the Veteran must designate the organization or individual on a VA Form 21-22 or 21-22a. 38 CFR § 14.631 (2012). Therefore, on remand, the RO/AMC should clarify with the Veteran whether he wishes the Minnesota Department of Veterans Affairs to continue to represent him or whether he desires a change in representation. In this regard, a current VA Form 21-22 or 21-22a should be completed and processed, if necessary. Accordingly, this matter is hereby REMANDED to the RO for the following action: 1. Clarify with the Veteran whether he wishes the Minnesota Department of Veterans Affairs to continue to represent him or whether he desires a change in representation, obtain and process a current VA Form 21-22 or 21-22a, if necessary, and associate any new designation with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide complete signed, current authorizations to enable obtaining, all records from the Associated Clinic of Psychology(dated from 2009 to the present) as well as any records generated as a result of the Veteran's participation in Project Pathfinders(dated from 2008 to the present). Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid further remand, ensure that the 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, 11 Vet. App. at 268. 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo examination or obtaining a medical opinion in connection with the claim, if appropriate), readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his 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 purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).