Citation Nr: 1330853 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 06-10 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Douglas T. Friedman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran served in the Alabama Air National Guard from January 1981 to January 2001. Among other periods, the Veteran had verified active duty for training (ACDUTRA) from April 2, 1988, to April 26, 1988, and from June 11, 1988, to June 24, 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama, that, in pertinent part, denied the benefit sought on appeal. The Veteran submitted a notice of disagreement and timely perfected a substantive appeal. In September 2010, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided at the Board's central office in Washington, DC. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in October 2010 at which time it was remanded for additional development. Thereafter, in July 2012, the Board denied the Veteran's claim. The Veteran appealed the July 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court), and in a January 2013 Order, the Court granted a Joint Motion for Vacatur and Remand vacating the Board's July 2012 decision and remanding the issue back to the Board for additional development consistent with the instructions of the Joint Motion. The case is now returned to the Board. The Board notes that the Veteran had previously been represented in this matter by The American Legion. However, in August 2013, the Veteran appointed the representative as captioned above. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an September 2013 Informal Hearing Presentation submitted by The American Legion which has been considered by the Board, notwithstanding that the Veteran has, in the interim, appointed new representation. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND According to the January 2013 Joint Motion for Vacatur and Remand, the parties have determined that VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA) has not been satisfied. Specifically, the Veteran's claims file does not contain a copy of a May 14, 2012, request for Defense Personnel Records Information System (DPRIS) records cited by the Board in July 2102 and referenced by the Appeals Management Center (AMC) in its June 4, 2012, "Formal finding regarding the lack of information needed to corroborate a stressor associated with a claim for entitlement to service connection for PTSD." Additionally, while the record contains an internal VA "Service Department Records Envelope," upon which was written "DPRIS: All Records," it does not contain any communication from DPRIS stating that the records stored in the envelope were the only records in its possession. In light of the absence of the request to or the response from DPRIS, the parties agreed that on remand, it must be confirmed that the DPRIS supplied all records in its possession. See 38 C.F.R. § 3.159(c)(2) (2013). Both the request to DPRIS and its response is to be included in the Veteran's claims file. Additionally, the parties determined that the record also fails to demonstrate compliance with the duty to assist as to the requests for the Veteran's immunization records from the Headquarters-Air Reserve Personnel Center (HARPC). In February 2012, the AMC had contacted the HARPC in an attempt to verify the Veteran's contentions that he received multiple awards for his unverified Special Operations assignments in Honduras and Columbia, between 1988 and 1989. This request made no mention of immunization records, service personnel records, or service medical records. The HARPC responded shortly thereafter and stated: Per your request[,] a list of awards is attached. This list is based on available documents in Arms Documents. Member's records were requested through records here at [the H]ARPC, and records states, that there are no other records available. This organization does not have any other information available, and therefore cannot verify any of the decorations the Veteran contends he has. Our records indicate member only has the awards and decorations that are listed on his 214[s]s and NGB 22, which were used to create this list. The burden of proof is on the [M]ember. Subsequent to the above request and response, the AMC contacted the HARPC in March, April, and May 2012 to request copies of the Veteran's service personnel and medical records, to include copies of his immunization charts. The record does not contain a response from the HARPC regarding these requests, although the AMC sent the Veteran a letter in May 2012 stating, "We have been unable to obtain your immunization chart. We attempted to obtain your immunization chart from [the HARPC] at Buckley AFB in Colorado." In June 2012, the AMC issued a "Formal Finding on the Unavailability of the Veteran's Immunization chart," which appears to have conflated the February 2012 request to and response from the HARPC with the later requests for the Veteran's service medical and personnel records. Specifically, the AMC found that a "[r]equest [had been] sent to [the HARPC] requesting a list of the Veteran's medals, decorations, and awards[,] as well as the Veteran's immunization chart," but the "[n]egative response received from [the] HARPC provided only a list of awards [and] stated that there are no other records available." The parties agreed that, because the record did not contain a response to the March and May 2012 letters to the HARPC, which first requested the Veteran's immunization chart, and because the February 2012 HARPC response that "no other records [were] available" and that "[t]his organization does not have any other information available" appears, on its face, to refer only to the awards verification request, VA failed to ensure compliance with its duty to assist. The HARPC is a federal agency and, as such, the AMC was required to "make as many requests as are necessary to obtain [the] relevant records." 38 C.F.R. § 3.159 (c)(2) (2013). Although the Formal Finding on the Unavailability of the Veteran's Immunization chart might otherwise qualify as a finding that "the records sought do not exist or that further efforts to obtain those records would be futile," the improper conflation of two separate, unrelated requests to the HARPC precludes such finding. Consequently, as neither the AMC nor the Board received a response from the HARPC notifying VA "that the requested records do not exist or the custodian does not have them," before issuing a formal finding of unavailability and deeming the duty to assist satisfied, a remand is required to ensure compliance. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted PTSD should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that are not yet associated with his claims file for treatment of his asserted PTSD. All records obtained must be associated with his claims file. 2. The RO shall contact the DPRIS and request all records pertaining to the Veteran in its possession. The DPRIS shall also be requested to verify whether records contained in an internal VA "Service Department Records Envelope," upon which was written "DPRIS: All Records," were the only records of the Veteran in its possession. All prior and current requests for records to the DPRIS, and responses from DPRIS, must be associated with the Veteran's claims file. If there are no records available, a copy of the negative reply must be associated with the claims file and the Veteran and his representative informed accordingly. 3. The RO shall contact the HARPC and request that all copies of the Veteran's service personnel and medical treatment records, to include copies of his immunization charts, in its possession be provided. All prior and current requests for records to the HARPC, and responses from HARPC, must be associated with the Veteran's claims file. If there are no records available, a copy of the negative reply must be associated with the claims file and the Veteran and his representative informed accordingly. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ J.A. MARKEY 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) (2013).