Citation Nr: 1318872 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-30 194A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The case was certified to the Board by the RO in Newark, New Jersey. In May 2012, the Board remanded the Veteran's claim for additional development. The case is once again before the Board for appellate review. A review of Virtual VA reveals that it contains VA treatment records relevant to this claim. 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 REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted above, the Veteran's claim was remanded in May 2012 for further development. The remand instructed that following the completion of that development, the claim should be readjudicated and the Veteran provided with a supplemental statement of the case and given an appropriate period to respond. Although the Veteran submitted a letter in December 2011 indicating that he had a change of address, and while the new address was used once later in December 2011, the new address is not reflected in the Veterans Appeals Control and Locator System (VACOLS). Hence, it was not used when mailing subsequent correspondence to the Veteran, including the April 2013 supplemental statement of the case. In May 2013, the supplemental statement of the case mailed to the Veteran was returned to VA as undeliverable. The United States Court of Appeals for Veterans Claims (Court) held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Despite providing VA with his new address, VA has failed to take note of this change and has as a result failed to provide the Veteran with a supplemental statement of the case or an opportunity to respond to that supplemental statement of the case as instructed. The Board notes that there is yet a third address of record that has been used for some correspondence to the Veteran, including the March 2013 development letter sent by the AMC. The RO/AMC should therefore attempt to verify the Veteran's current address and resend any previous correspondence that was not sent to that address since December 2011, to include the May 2012 Board remand, and the April 2013 supplemental statement of the case. While on this occasion the error in contacting the Veteran appears to be due to an administrative error by VA, the Board takes this opportunity to advise the appellant that while VA has a duty to assist him in the development of a claim, that duty is not limitless. In the normal course of events, it is his burden to keep VA appraised of his whereabouts. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). While this matter is on remand, any outstanding, relevant VA treatment records should be added to the record. The current record contains VA treatment records from the East Orange and Lyons Campuses of the VA New Jersey Health Care System from August 2007 to May 2012. Records generated by VA facilities that may have an impact on the adjudication of a claim are constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO/AMC should acquire all records related to VA psychiatric treatment of the Veteran since May 2012 and associate these records with the claims file. 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. With the assistance of his representative, the RO must attempt to verify the Veteran's current address. Thereafter, please resend any correspondence that was not sent to his current address since December 2011, to include the May 2012 Board remand and the April 2013 supplemental statement of the case. Any changes to the Veteran's contact information should be updated in VACOLS. 2. The RO/AMC should obtain from the East Orange and Lyons Campuses of the VA New Jersey Health Care System all records and test results relating to psychiatric treatment since May 2012. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After completion of the above, the Veteran's claim should be readjudicated. If the benefit sought is not granted, the appellant and his representative must be furnished with an additional supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ DEREK R. BROWN 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).