Citation Nr: 1328405 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-20 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a hearing at the RO in October 2012 before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. When this case was before the Board in March 2013, the Board granted reopening of the Veteran's claim for service connection for psychiatric disability and remanded the reopened claim for further development. The case has since been returned to the Board for further appellate action. REMAND The Veteran mainly contends he is entitled to service connection for PTSD due to in-service rape occurring in late March 1969. The claim was previously remanded to obtain outstanding VA medical records and to afford the Veteran a VA examination. Upon review of the record, the Board concludes its prior Remand directives were not complied with and, therefore, an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding 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). At his hearing before the Board in October 2012, the Veteran indicated he first admitted the in-service rape during 1999 treatment for stress and anxiety at a VA facility. Records pertaining to psychiatric treatment from 1970 to 1974, in the 1980s, and beginning in 2005 are of record, but no records pertaining to the alleged treatment in approximately 1999 were of record. The Board previously remanded the claim to ensure all identified records were obtained. The Appeals Management Center (AMC) did associate records from October 2012 to February 2013, but did not otherwise search for the 1999 records. In fact, the AMC did not inform the Veteran that 1999 records were missing until May 2013, just prior to re-certifying the appeal to the Board. The Veteran submitted a statement in May 2013 indicating he never received private treatment for his psychiatric condition(s), but has been seen at VA facilities in Bedford, Massachusetts, Manchester VA Hospital (New Hampshire), and Bay Pines. Currently, the record only contains records from Bay Pines from 2005 to February 2013 and records from Bedford, Massachusetts from 1979. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, further development to obtain the missing VA treatment records is in order. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain all available, outstanding records pertinent to the Veteran's claim, to include records pertaining to his VA treatment in 1999, identified treatment at the VA Hospital in Manchester, New Hampshire, VAMC in Bedford, Massachusetts, and VAMC in Bay Pines, Florida. All efforts to obtain these records, including follow-up requests if appropriate, must be fully documented if any requested records are not obtained. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3. Then, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and an appropriate period of time for response before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). _________________________________________________ Shane A. Durkin 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).