Citation Nr: 1338341 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-09 181 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to February 1988. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision in which the RO denied the Veteran's claim of entitlement to service connection for depression. Later that month, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. In July 2012, the Board remanded this matter to afford the Veteran the opportunity for a Board hearing. The hearing was held in July 2013 before a Veterans Law Judge sitting at the Chicago, Illinois, RO. A transcript of the hearing is of record. Prior to the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration. However, such is moot, as the appeal is being remanded and the RO, consequently, will have the initial opportunity to review such evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. During the July 2013 hearing, the Veteran testified that he receives treatment from a private psychiatrist in Rockford, Illinois. Evidence received prior to the hearing includes a note from the office of Dr. Z.A.R., a psychiatrist located in Rockford, Illinois, stating that the Veteran had received treatment there. Apart from this note, there are no records from this physician. As these records are relevant to the Veteran's claim, the RO should undertake appropriate action to obtain and associate these records with the claims file. Therefore, on remand, the RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records, to include records from Dr. Z.A.R. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). Additionally, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain from all pertinent VA facility(ies)-to include the VA Medical Center (VAMC) in Houston, Texas, and if applicable, Illinois-based VAMCs-all outstanding, pertinent records of evaluation and/or treatment of the Veteran. In this regard, the Board notes that the record contains treatment records from the Houston VAMC dated through May 4, 2011, and that the Veteran subsequently relocated to Illinois. The claims file does not contain records from any Illinois-based VAMCs, and it is unknown whether he receives VA care there. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication the claim should include consideration of all additional evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from appropriate VA facility(ies)-to include the Houston VAMC, and if applicable, Illinois-based VAMCs-any outstanding, pertinent VA records of evaluation and/or treatment of the Veteran since his discharge from service. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records, including those from Dr. Z.A.R., a psychiatrist located in Rockford, Illinois. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence (to include all that added to the record since the last adjudication) and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).