Citation Nr: 1324254 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-06 300 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Guam Office of Veterans Affairs ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from July 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision, which, in relevant part, denied service connection for PTSD. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Board remanded this case in March 2012 and March 2013 for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board also recharacterized the appeal because the VA treatment records also show that the Veteran has been diagnosed as having major depressive disorder at times. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board remanded the acquired psychiatric disability claim in part to provide the Veteran with a VA examination in March 2012. In March 2013, the Board remanded to obtain outstanding treatment records and obtain an adequate medical opinion. While this case was on remand, the Veteran submitted a completed VA Form 21-4142, Authorization for Release of Information in April 2013 to have the AMC obtain records from the Vet Center located in Guam for counseling between January 2007 and December 2012. The Virtual VA record shows that the form was received by the Honolulu RO on April 29 and scanned into the electronic record on April 30. The AMC took no action to obtain the Vet Center treatment records. The AMC instead obtained the Veteran's VA treatment records through the CAPRI system in May 2013. A May 2013 addendum opinion was also obtained, prior to issuance of a May 2013 Supplemental Statement of the Case (SSOC). The April 2013 VA Form 21-4142 was of record in a timely fashion to permit the AMC to conduct appropriate development. The Board's March 2013 remand instruction specifically mentions the Vet Center records as those that needed to be obtained for the appeal. The Vet Center records should can be obtained. See Stegall. The Board also remanded in March 2013 to obtain an updated opinion regarding a 2007 diagnosis of depression. The record reflects that a May 2013 supplemental opinion was obtained that determined that the depression was not at least as likely as not related to service. This opinion was, however, offered on the basis of claims file record which is missing the Vet Center records. Because of the incomplete record, the Board cannot accept this opinion as adequate. Once the outstanding Vet Center treatment records are obtained, a supplemental opinion should be requested. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's mental health treatment records from the Guam Vet Center for the period of January 2007 to December 2012 using the VA Form 21-4142 received in April 2013. 2. Once the above evidence has been obtained, arrange for the Veteran's claims file, including a copy of this remand, to be reviewed by the VA examiner who prepared the March 2013 VA addendum opinion (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum to the examination report regarding the claimed psychiatric disorder. The examination report should reflect that such review has been accomplished. After undertaking a longitudinal review of the pertinent medical evidence, the examiner should render an opinion as to whether a psychiatric diagnosis is identified at any time since February 2004 when the Veteran submitted his claim and whether it is at least as likely as not (50 percent or greater) that a psychiatric disorder, to include depressive disorder NOS first indicated to be diagnosed in 2007, was at least as likely as not related to service or any incident therein, even though the March 2012 VA examination report indicates that Veteran longer meets the diagnostic criteria for a depressive disorder NOS. The examiner should fully explain any opinion expressed. If the examiner cannot render the requested opinion, a full explanation for why the opinion cannot be made must be provided. 3. Then, the RO should readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ K.J. ALIBRANDO 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).