Citation Nr: 1750110	
Decision Date: 11/03/17    Archive Date: 11/13/17

DOCKET NO.  13-21 448	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. 


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney


ATTORNEY FOR THE BOARD

C. Ford, Associate Counsel


INTRODUCTION

The Veteran served active duty in the United States Navy from November 1978 to December 1978.

This appeal arises before the Board of Veterans' Appeals (Board) from a July 2009 rating decision in which the Department of Veteran Affairs (VA) New York, New York, Regional Office (RO) denied entitlement to service connection for depression, also claimed as fear and anxiety.  In June 2014, the Board denied the Veteran's claim.  The Veteran perfected an appeal to the United States Court of Appeals for Veterans Claims (Court).  In a September 2015 memorandum decision, the Court vacated the Board's prior decision and remanded for reajudication.  In June 2016, the appeal was remanded for further development.  The claims file has subsequently been transferred to the St. Petersburg, Florida RO.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the nature and etiology of the Veteran's acquired psychiatric disorder.

The Veteran asserts that his acquired psychiatric disorder is due to his period of service.  

In a September 2015 memorandum decision, the Court stated that VA should attempt to obtain all the Veteran's private treatment records from Kings Park Psychiatric Center.

The Veteran, through his attorney, has also asserted that VA has not obtained all of the Veteran's service treatment records.  Following the September 2015 Court memorandum decision, a June 2016 Board remand issued directives which, in part, instructed the RO to take all appropriate action, to include contacting the Office of Navy Surgeon General, the Recruit Evaluation Unit and Naval Regional Medical Center, and attempt to obtain all records, if any, for the Veteran for the period from December 5 through December 13, 1978.  The Board emphasized that the RO should make a formal finding of unavailability if requests for records are unsuccessful.

The record indicates a request for the Veteran's complete medical and dental service treatment records and entire personnel file from the National Personnel Records Center.  However, there has been no indication of contact with the Office of Navy Surgeon General, the Recruit Evaluation Unit or the Naval Regional Medical Center, and the record does not indicate a formal finding of unavailability was made. 

For these reasons, the Board finds that the originating agency failed to substantially comply with the June 2016 remand directives.  Such noncompliance is error on the part of the originating agency.  Moreover, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  Accordingly, the Board must once again remand the matter for compliance.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Contact the Office of Navy Surgeon General, the Recruit Evaluation Unit and the Naval Regional Medical Center to obtain the Veteran's service records, if available.  All attempts to obtain these records should be documented in the claims file.  If any documents regarding the Veteran's service are found, associate with the Veteran's claims file.  If the search for these records is negative, the RO should make a formal finding of unavailability, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e).

2.  Then readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto.

The appellant 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).

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 2014).



_________________________________________________
JENNIFER HWA 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).