Citation Nr: 1316159	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  09-21 675	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression.  


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel

INTRODUCTION

The Veteran had active service in the United States Air Force from April 1969 to April 1973.  

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The Veteran appeared at a Travel Board hearing in August 2011.  A transcript is of record.  

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


REMAND

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has invalidated the regulations which empowered the Board to consider additional evidence without prior RO review in the absence of a waiver of such review by the Veteran.  Disabled American Veterans vs. Sec'y of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003).  

On January 16, 2013, the Board received a letter from a psychologist at the Austin VA OPC dated January 16, 2013.  This evidence was not previously considered in a decision by the Veteran's local VA RO or by the Appeals Management Center (collectively referred to as the agency of original jurisdiction (AOJ)).  In March 2013, the Veteran was sent a letter informing him that he had a right to have this evidence reviewed by the AOJ before the Board made a decision in the case.

The Veteran was informed that he had 45 days from the date of the Board's letter to respond, and that if he did not respond within that time, the Board would assume that he did not wish to have the Board decide his appeal at this time, and would remand his appeal to the AOJ for review. 

The 45 day window has now expired without comment from the Veteran.  As such, the Board must remand this case for review of the additional evidence.

Accordingly, the case is REMANDED for the following action:

Readjudicate the Veteran's claim.  If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC.  An appropriate period of time should be allowed for response before the case is returned to the Board.  
 
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).


_________________________________________________
T. JONES
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).