Citation Nr: 1316963 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-40 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder other than PTSD, to include major depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from June 1977 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and May 2007 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran, his mother, D.J.B., and his brother, G.L.B., presented testimony before the undersigned at a Travel Board hearing held at the RO. A transcript of the hearing was prepared and associated with the claims file. In October 2011, the Board reopened the Veteran's claim of entitlement to service connection for PTSD and dismissed claims of service connection for a skin disorder, diabetes mellitus type II, and hypertension. The Board remanded the Veteran's claim for PTSD and an acquired psychiatric disorder for additional development. In its decision, the Board noted that the Veteran submitted his claim as well as additional evidence in October 2006, prior to the expiration of the appeal period for the September 2006 rating decision which determined that new and material evidence sufficient to reopen the service connection claim for PTSD had not been presented. In the October 2011 rating decision, the Board found that new and material evidence was presented during the appeal period for the September 2006 rating decision. Thus, it was considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 CFR 3.156(b). Therefore, the Board found that the September 2006 and May 2007 rating decisions were properly identified above as the actions on appeal. In its October 2011, decision the Board observed that the RO had denied service connection for an adjustment disorder with depression in a February 1989 rating decision. The Board noted that the U.S. Court of Appeals for the Federal Circuit, in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), held that a claim for one diagnosed disease or injury cannot be prejudiced by the result in a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). Thus, the new diagnosis of major depression required a de novo adjudication. The Veterans Law Judge that held the May 2011 hearing is no longer an employee of the Board. The Veteran was sent a letter dated in March 2013, requesting that he inform the Board whether he would like an additional hearing. He was informed that if he did not respond within 30 days, the Board would assume that that he did not want another hearing. The Veteran has not submitted a response. In addition to the physical claims file, the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the paper claims file and will proceed with review of the claim based upon all relevant evidence. 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 In its previous remand, the Board instructed that the Veteran should be provided notice of amendments to 38 C.F.R. § 3.304(f)(3) (2012) that liberalized the evidentiary requirements for a stressor in PTSD claims based on fear of hostile military action. The Veteran was sent additional VCAA notice in a November 2011 letter, but this letter did not include notice regarding the recent changes to the evidence required to support a claim for service connection for PTSD, pursuant to the recently amended version of 38 C.F.R. § 3.304(f)(3). The supplemental statement of the case issued in October 2012, also did not mention the amendments to 38 C.F.R. § 3.304(f). The SSOC also limited the issue to service connection for a psychiatric disability other than PTSD; although pertinent evidence had been received referable to the question; and did not reflect consideration of a September 2012 addendum to a December 2011 VA psychiatric examination report. Cf. 38 C.F.R. § 19.31 (2012) (requiring that a supplemental statement of the case be issued if pertinent evidence is received after issuance of the statement of the case). A remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: If any benefit sought on appeal remains denied, issue a supplemental statement of the case that includes consideration of the provisions of 38 C.F.R. § 3.304(f)(3); the September 2012 addendum to the December 2011 examination; and the question of entitlement to service connection for PTSD. Thereafter, the case should be returned to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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).