Citation Nr: 1330126 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-26 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active military service from January 1968 to January 1988. He died in August 2012 and his widow has been substituted as the appellant. This matter 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 Winston-Salem, North Carolina. A Board decision in October 2011 denied the Veteran's claim. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2012, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. In March 2013 the Board dismissed the claim due to the death of the Veteran. Subsequently, the appellant was substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. Thus, this is a case governed by 38 U.S.C.A. § 5121A as to a party substituted for the deceased service person. The Director of the VA's Compensation and Pension Service issued in August 2010 a Fast Letter, providing guidance on processing claims involving substitution of parties and noting specifically that, unlike accrued benefits claims, where an eligible party is substituted, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. See Fast Letter 10-30 (Revised, April 3, 2013). In consideration of the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim for benefits based on posttraumatic stress disorder encompassed benefits based on other psychiatric disabilities), the Board has labeled the claim as one for an acquired psychiatric disability, which will include any and all psychiatric diagnoses shown in the claims file. 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 the April 2012 JMR, the parties agreed that "the Board failed to ensure that the Department of Veterans Affairs (VA) had fulfilled its duty to assist." The JMR indicated that Board noted that the Veteran was seen in a mental health clinic in service on a number of occasions from January 1984 to February 1985. The parties agreed that "[t]he chronological records of medical care reviewed by the Board contain notations suggesting the existence of a separate mental health file." The parties agreed that "[o]n remand, the Board should attempt to ascertain whether there are outstanding mental health service records, and if so, obtain and associate them with the [Veteran's] file." The Board is therefore remanding this matter for attempts to be made to obtain and associate with the claims file any outstanding mental health service records in compliance with the Court's April 2012 order granting the parties' JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (providing that the Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled.). If and only if additional records are obtained and associated with the claims file, an addendum medical opinion that reflects consideration of this additional information should be sought. Accordingly, the case is REMANDED for the following action: 1. Request all records of the Veteran's in-service mental health treatment from the National Personnel Records Center (NPRC) in St. Louis, Missouri, Personnel Information Exchange System (PIES), request code C01, or any other appropriate source. Complete all other necessary steps for developing in-service mental health treatment records in accordance with the procedures outlined in the VA Manual. See M21-1MR, supra, at pt. IV, sbpt. ii, ch. 1, § D.14.b. If VA is unable to secure the records, (a) all efforts to obtain the records must be documented in the claims folder and (b) the Veteran must be notified of (i) the specific records VA was unable to obtain; (ii) the efforts that VA made to obtain those records; (iii) the Veteran's responsibility to provide the evidence that cannot otherwise be obtained; and (iv) any further action to be taken by VA with respect to the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA is unable to obtain. See 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1) . 2. If additional records are obtained, refer the claims folder with the newly received records to the April 2011 VA examiner or, if unavailable, to another suitably qualified VA examiner for the purpose of obtaining an addendum opinion in light of the additional evidence received. The examiner should clarify whether the newly received records would change any aspect of the previous opinion and explain why. 3. Therafter, readjudicate the claim on appeal. If the claim remains denied, provide the appellant with a supplemental statement of the case and allow an appropriate time for response. The appellant 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). _________________________________________________ MICHAEL MARTIN 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).