Citation Nr: 1337852 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-33 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In an April 2012 remand, the Board directed the RO to send the Veteran additional correspondence providing notification with respect to his claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). As one of the Veteran's PTSD stressors involves a claimed in-service personal assault, the Board determined that the Veteran must receive notice of the alternative sources of evidence that may be used to substantiate the occurrence of an in-service personal assault. See 38 C.F.R. § 3.304(f) (2013); VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Par. 5.14d. In so doing, the Board essentially determined that the notice letters previously sent to the Veteran in August 2006, May 2010, and November 2011 were insufficient to provide the requisite notice for a claim based on in-service personal assault. The claims file reflects that the RO sent the Veteran a letter in May 2012 that provided notice of the evidence needed to substantiate the claim for service connection, to include PTSD, and of his and VA's duties with respect to obtaining evidence to support the claim. This letter, however, is essentially duplicative of the May 2010 notice letter that the Board previously determined to be inadequate. Essentially, the most recent May 2012 letter does not provide adequate notice with regard to the special evidentiary procedures required for claims based on in-service personal assault. As such, the May 2012 letter does not comply with the Board's instructions. The Veteran has a right to compliance with the remand instructions that are set forth by the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the claim must be remanded so that the RO can provide the Veteran with adequate notice. Additionally, the Board directed in the April 2012 remand that the RO contact the licensed social worker at the Vet Center in Princeton, West Virginia who provided a December 2011 letter received in this case, in which the Veteran was given a diagnosis of PTSD. The RO was instructed to request that the licensed social worker provide additional information in support of this diagnosis, to include identifying the stressors upon which the PTSD diagnosis was made, identifying the symptom pattern that met each criteria from the DSM-IV, and providing the rationale for the opinion that the Veteran's PTSD is related to in-service stressors. In a June 2012 letter, the RO contacted the Vet Center in Princeton and requested that the facility provide all records for the Veteran relevant to PTSD. The RO also requested that the licensed social worker who wrote the December 2011 letter provide the clarifying information requested in the April 2012 remand. The RO did not specifically identify the licensed social worker who provided the December 2011 letter. (J.U. is the licensed social worker identified in the December 2011 letter.) In June 2012, the RO received a letter from a Princeton Vet Center licensed social worker reflecting that that the Veteran had received treatment for PTSD since June 2006; the RO subsequently received the Veteran's last Vet Center clinical summary and treatment records. However, the professional who sent the June 2012 correspondence is not the same licensed social worker who provided the December 2011 letter. A fax transmission cover sheet that accompanied the June 2012 letter indicates that that the December 2011 licensed social worker was still employed by the Princeton Vet Center at that time. The RO has not made any attempts to obtain the requested information from the December 2011 licensed social worker or otherwise made a determination that this person is no longer available to satisfy this request. Thus, there has not been substantial compliance with the April 2012 remand directives. Accordingly, the RO must contact the Princeton Vet Center licensed social worker who provided the December 2011 letter to VA and request clarification of the professional's opinion, as directed in the April 2012 remand. See Stegall, 11 Vet. App. at 271. Accordingly, the case is remanded for the following action: 1. The RO must provide the Veteran notice and assistance with respect to his claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. 3.102, 3.156(a), 3.159, 3.303(f), 3.326 (2013); Patton v. West, 12 Vet. App. 272, 278 (1999). The notice must advise the Veteran that evidence from sources other than his service records and evidence of behavior changes may constitute credible supporting evidence of the claimed in-service stressor involving a personal assault, as contained in 38 C.F.R. 3.304(f) (2013) and the VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Par. 5.14d. The RO must allow the Veteran the opportunity to furnish this type of evidence or otherwise advise VA of the potential sources of such evidence. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the evidence of record by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. The RO must contact licensed social worker J.U. at the Vet Center in Princeton, West Virginia and request clarification of the diagnosis opinion provided in the December 2011 letter received by VA. The RO must request the licensed social worker to provide the verified stressors upon which the December 2011 diagnosis of PTSD was made, and indicate the symptom pattern found that met each of the diagnostic criteria from the DSM-IV. The licensed social worker must also be asked to provide a complete rationale for the opinion that the Veteran currently has PTSD that is related to stressors he experienced in service. All attempts to secure the requested opinion and any responses thereto must be documented in the evidence of record. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 4. Thereafter, the RO must review the claims files to ensure complete compliance with the directives of this remand. If any directive is not completed in full, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, to include obtaining an additional medical opinion if necessary, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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 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).