Citation Nr: 1321768 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-00 719 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1976 to September 1992. The issue on appeal first came to the Board of Veterans' Appeals (Board) from an April 2009 rating decision issued by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In February 2012, the Board remanded the case to the RO for additional development. After completion of some of this development by the RO, the case was returned to the Board for the purpose of appellate disposition. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Before addressing the merits of the acquired psychiatric disorder claim on appeal, the Board finds that additional development of the evidence is required. First, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court also recently clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97 (2008). In any event, the Court routinely vacates Board decisions based on this situation. Although, regrettably, it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's previous February 2012 remand directives. Specifically, one of the instructions in the Board's previous February 2012 Board remand was for the RO to secure any outstanding records of VA treatment and associate them with the claims folder. The RO never complied with this instruction. As relevant to this point, the May 2012 VA psychological examiner referred to various VA PTSD and depression screenings conducted in the 2000's at a VA Medical Center (VAMC) (presumably in North Carolina). Despite this notation, no outstanding VA treatment records were associated with the claims folder. The Veteran has been receiving VA treatment since the 1990s. Therefore, all relevant VA treatment records on Virtual VA dated since the 1990s to the present must be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Second, the RO has not secured the Veteran's service personnel records (SPRs) from the National Personnel Records Center (NPRC), Records Management Center (RMC), or other appropriate location. In this regard, VA is required to obtain "relevant" records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(3). These records include military records such as SPRs. 38 C.F.R. § 3.159(c)(2) and (3). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to secure copies of complete records of all relevant VA medical treatment rendered since 1990's, to include Virtual VA records from VA Medical Centers (VAMCs) in North Carolina. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. The RO also should take all indicated action to contact the NPRC and /or RMC or other appropriate locations and secure the Veteran service personnel records (SPRs) for her active duty service with the U.S. Army from November 1976 to September 1992. Most importantly, if these records are unavailable or no longer exist, a negative reply to this effect is required from the NPRC or other appropriate facility. 3. The RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing all indicated development to the extent possible, the RO should readjudicate the claim remaining on appeal, in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to the Veteran and she should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).