Citation Nr: 1334355 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-04 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from June 16 to August 19, 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2010, the Veteran testified before the undersigned during a travel board hearing. A transcript of the proceeding has been associated with the claims file. In a December 2010 decision, the Board remanded the claim for further evidentiary development. In an April 2012 decision, the Board denied the claim. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2012 Order, the Court granted a joint motion for remand (JMR), vacating the Board's April 2012 decision that denied entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, and remanding the issue to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Additional development is required before the issue on appeal is adjudicated. In February 2011, the Veteran requested a copy of the January 2011 VA examination report; such report includes diagnoses of PTSD and major depressive disorder, as well as an opinion that neither disorder had their onset during the Veteran's service or were related to her active service. In a subsequent February 2011 Report of General Information, the RO noted the Veteran's request, and informed the Veteran that it could not provide the requested document at that time because her file had been temporarily transferred to the AMC. In January 2012, the RO issue a supplemental statement of the case, which described the January 2011 VA examination results; however, as indicated in the November 2012 JMR, there is no indication that the Veteran was ever provided a copy of her examination report as requested. In the April 2012 decision, the Board considered and relied on the aforementioned VA examination report; however, by failing to furnish such report to the Veteran prior to the decision given that the Veteran's request for the report pre-dated the decision, is a violation of the fair process principle. See Thurber v. Brown, 5 Vet. App. 119, 123 (1993). As such, the Veteran must be provided a copy of the January 2011 VA examination report, as well as an opportunity to comment or respond to such report. In addition, in a September 2013 statement, the Veteran's representative noted that the Veteran was treated for her psychiatric disabilities at Cooper Green Hospital and Montclair Hospital. While records from Cooper Green Hospital were obtained and associated with the record, there is no indication of an attempt to obtain records from Montclair Hospital. In this regard, under 38 U.S.C.A § 5103A, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C.A § 5103A(a)(1) (West 2002); see 38 C.F.R. § 3.159(c)(1) (2013). Therefore, as the identified private treatment records may have a bearing on the Veteran's claim, VA must attempt to obtain such records. If such records are not available, VA must document a negative response, make a formal finding of unavailability, and inform the Veteran of this fact. Accordingly, the case is REMANDED for the following actions: 1. Take all appropriate action necessary to obtain and associate with the claims file all treatment records from Montclair Hospital located in Birmingham, Alabama since the Veteran's discharge from service, from August 1980 to present. The claims folder must document the efforts made to obtain these records along with any negative responses. If the records cannot be obtained, a letter must be sent to the Veteran informing her of this fact. 2. Provide the Veteran a copy of the January 2011 VA examination report. The claims folder must document the details of this action, to include the date the report was sent to the Veteran. 3. Thereafter, readjudicate the Veteran's claim, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, she and her representative must be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ L.M. BARNARD Acting 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).