Citation Nr: 21010472 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-24 266A DATE: February 24, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for head trauma is remanded. Entitlement to service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1992 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran’s initial claim for entitlement to service connection for a back condition was denied in November 2001. The Veteran was notified of the denial in December 2001, and did not initiate an appeal or submit new and material evidence within one year of the rating decision and it became final. In August 2009, the Veteran submitted a claim to reopen his previously denied back condition, and added the issues of head trauma, migraine headaches, and PTSD. In an April 2010 rating decision, the RO denied reopening the Veteran’s service connection claim for a back condition, and denied service connection for PTSD, migraine headaches, and head trauma. The Veteran was to be notified of the denial in an April 2010 letter that was sent to the address of record at the time. See April 2010 Notification Letter. The mailing was not returned as undeliverable; however, the Veteran’s attorney sent a notification of a change of address dated June 2010 and another notification of a change of address in May 2011. In an August 2011 correspondence, the Veteran’s attorney indicated they have not received any notification of a decision regarding the claim on appeal. VA replied to the attorney that a decision had indeed been made in April 2010. See February 2012 Notification Letter. In an April 2012 correspondence, the attorney asserted that they, nor the Veteran received notice of the decision. The Board finds the evidence of record insufficient to conclude that the Veteran in fact received notice of the April 2010 denial of service connection for PTSD, migraine headaches, head trauma, and a back condition. The Veteran’s attorney notified VA of a change of address in June 2010, just two months after the April 2010 decision. The April 2010 decision does not show that a copy was sent to the attorney of record. Lastly, the fact that the attorney requested status updates instead of actually filing a NOD indicates that neither the attorney, nor the Veteran received VA’s April 2010 decision. Accordingly, the Board finds the Veteran never received VA’s April 2010 denial, so he never received notice of his appellate rights. By extension, the April 2010 rating decision never became final. The Board finds it necessary to remand these matters currently before it for consideration in the first instance by the agency of original jurisdiction (AOJ). While these matters are on remand, to ensure that the record is complete, the AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The matters are REMANDED for the following action: 1. Send the Veteran a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. 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 of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. 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. §§ 5109B, 7112 (West 2014). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.