Citation Nr: 1328979	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  09-07 526	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include Posttraumatic Stress Disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel






INTRODUCTION

The Veteran served on active duty from February 1997 to September 2004 and from November 2008 to November 2009.  He continues to serve in the Army National Guard (ARNG).  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In that decision, the RO denied the claim of service connection for PTSD.  

The Veteran failed to report for a videoconference hearing before the Board in October 2012.  He has not requested that the hearing be rescheduled and the Board finds the request for a Board hearing is withdrawn.  See 38 C.F.R. § 20.704(d) (2012).  

This claim was remanded in December 2012.  

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 December 2012, the Board remanded this claim, in part, to obtain the Veteran's service connection  treatment records, including from the period of active duty service from November 2008 to November 2009 and his continuing ARNG service treatment records.  The Board finds these records have not been associated with the file.  If these records are unavailable, notice to the Veteran should be given in accordance with 38 C.F.R. § 3.159(e) (2013).  If records are found, the file should be returned to the November 2011 VA examiner so the file can be reviewed and an updated opinion may be given.  

Compliance with remand directives is neither optional nor discretionary.  Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to assure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Accordingly, the case is REMANDED for the following action: 

1. Obtain all service treatment records since September 2004 (the start of the Veteran's ARNG service, to include his 2008-2009 period of active duty).  If these records are unavailable, place the negative response in the file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e).  

2. If the above requested records are available, send the claims file to the November 2011 VA examiner for an updated opinion based on all evidence in the file.  If that examiner is no longer available to respond, another comparably qualified examiner may respond in his place.  If that examiner deems it necessary, then schedule the Veteran for another psychiatric examination.  All psychiatric diagnoses should be noted.  For each diagnosis, the examiner should state whether it is at least as likely as not that such disorder was incurred in or as a result of active service.  If PTSD is diagnosed, the examiner should expressly identify the stressful in-service event upon which such diagnosis is predicated.  

3.  After the above development is completed, review the evidence of record, to specifically include all evidence associated with the Veteran's claims file and Virtual VA record since the July 2013 supplemental statement of the case (SSOC), and re-adjudicate the issue on appeal.  If the benefit sought on appeal is not granted, the Veteran should be provided with a SSOC and afforded the appropriate opportunity to respond to it.  Then the case should be 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).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United St ates Court of Appeals for Veterans Claims (Court) 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).  



_________________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  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).