Citation Nr: 1336392 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 03-31 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran had honorable active service from August 1980 to August 1984, and from April 1985 to September 1985. A subsequent enlistment from September 1985 to August 1990 resulted in an other than honorable character of discharge. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that denied the benefit sought on appeal. This appeal was subject to prior remands by the Board in July 2005, October 2008, May 2010, August 2012, and-most recently, in March 2013, to ensure compliance with due process requirements. Unfortunately, further action is necessary to facilitate the Board's statutory review responsibilities. A review of the Veteran's electronic claims files is significant for additional VA treatment records and an October 2013 appellate brief. 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 The Board must remand this matter for the sixth time to ensure compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall, 11 Vet. App. at 271. Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. As such, the Board finds that this case is not ready for appellate review and must be remanded for compliance with the remand instructions. As noted in the introduction, the Veteran's last period of active service from September 1985 to August 1990 was deemed other than honorable by the U.S. Navy. In each the May 2010, August 2012, and March 2013 remands, the Board instructed the RO/AMC to make a formal character of discharge determination as to whether the "other than honorable" discharge for that period of service represents a bar to VA benefits based upon the Veteran's final period of service from September 1985 to August 1990 and then re-adjudicate the issue on appeal in a Supplemental Statement of the Case (SSOC). To date, the claims file and the VA electronic paperless claims systems contain no documentation to indicate that VA has made a determination on whether the Veteran's character of service for his last term of active service is a bar to VA benefits. Following the March 2013 Board remand, the RO merely created a handwritten note indicating that a character of discharge determination dated July 31, 1991, is currently associated with the claims file. Thus, the case was returned to the Board for further appellate consideration. The RO did not, however, attach a copy of the document referred to as the July 31, 1991 character of discharge determination, nor did it otherwise identify the document referred to in the claims file in any way. Following a thorough review of the claims file, the Board is unable to locate any character of discharge determination pertaining to the Veteran's period of active service dating from September 1985 to August 1990. Indeed, in February 1991, the RO notified the Veteran that it must determine the character of discharge pertaining his last period of active service and he was invited to submit evidence in support of a favorable decision on that matter. A deferred rating decision dated in March 1991 indicates that the a character of discharge determination pertaining to his last period of active service was necessary. In April 1991, the Veteran indicated that he was in the process of appealing the character of discharge decision to a review Board. An additional deferred rating decision dated in April 1991 directs that follow-up be done regarding that character of the Veteran's discharge. A VA treatment note dated April 30, 1991, outlines the Veteran's treatment progress. Thereafter, a September 1991 rating decision addressed the merits of multiple claims for service connection, however, the character of discharge pertaining to the Veteran's last period of active service was not addressed. The Board reiterates that a determination on whether the Veteran's character of service from September 1985 to August 1990 is a core issue of this case which must be addressed, regardless of a VA medical examiner's negative nexus opinion. Here, the evidence of record shows that the Veteran was treated for cocaine dependence and a failed suicide attempt during his final term of service, and he was hospitalized for psychiatric treatment within two years of his separation from the last period of active service. In light of the fact a claimant is entitled to one review of all determinations made on a claim, the Board may not make the initial determination here. See Disabled American Veterans, et al v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will make a formal character of discharge determination as to whether the "other than honorable" discharge for that period of service represents a bar to VA benefits based for the Veteran's final period of service for the period September 1985 to August 1990. Per the previous Board remands, the RO/AMC's review must address the issue of insanity as defined by VA regulations. 2. Thereafter, re-adjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative must be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative must be afforded the applicable time period in which to respond. 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). _________________________________________________ A. C. MACKENZIE 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).