Citation Nr: 1802855 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-03 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Ann Vessels, Attorney-at-Law ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had honorable active military service from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for posttraumatic stress disorder (PTSD) and schizoaffective disorder (notably the RO adjudicated these issues of service connection on the merits without addressing whether new and material evidence had been received to reopen previously denied claims for service connection for a psychiatric disorder, PTSD or a nervous condition). The Veteran appealed to the Board. In February 2014, the Board initially remanded for additional development to obtain VA and private treatment records. In a February 2015 decision, the Board reopened and denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). The Court vacated the Board's February 2014 decision only as to its denial of service connection for an acquired psychiatric disorder (it did not disturb the grant of reopening the previously denied claim of service connection), and remanded for the Board to take action pursuant to the parties' agreement in a Joint Motion for Partial Remand (JMPR). In July 2016, the Board remanded the Veteran's appeal to the RO to comply with the JMPR and seek to obtain any outstanding medical records and to obtain a VA examination. The Veteran's appeal has been returned to the Board. After review of the development conducted on remand, the Board finds that substantial compliance has been met with the prior Board's remand instructions. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran's claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In order to assist in developing the Veteran's claim, the Board requested an independent medical opinion from a VA psychiatrist or psychologist. Such opinion was obtained in July 2017. The Veteran was forwarded this medical opinion in November 2017. In response, the Veteran submitted a written statement asserting that the fact that, during the mid-1980s, he could not drill with or function as a National Guardsman once because he was hospitalized for psychiatric reasons makes him service-connected. He submitted the Medical Opinion Response Form on which he checked that he did not waive RO consideration of this evidence and requested that his case be remanded to the RO for consideration of this new evidence in the first instance. In addition, the Veteran's attorney submitted evidence and argument in support of the Veteran's claim in the form of a written brief and Social Security Administration (SSA) records in June 2017 and an independent medical opinion in September 2017. The Veteran's attorney did not submit a waiver of RO consideration of this new evidence and clearly the Veteran does not wish for the Board to review any new evidence at this time, so requesting a waiver from him would be fruitless. [The Veteran's substantive appeal with respect to the claim was filed before February 2, 2013; thus, a waiver is required with respect to the above-cited evidence. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154.] Consequently, the Board finds that it must remand the Veteran's appeal to the RO for it to consider this new evidence submitted by the Veteran and his attorney in the first instance. Any additional development required by the duty to assist should be accomplished prior to readjudication of the Veteran's claim. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claim based upon the evidence received since the March 2017 SSOC. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his attorney. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).