Citation Nr: 0004990 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-17 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran was on active service from December 1968 to October 1970. His claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). The veteran's claim for service connection for PTSD was initially denied by the RO in an unappealed June 1988 rating decision. The issue before the Board is thus, whether the veteran has submitted new and material evidence to reopen this claim. In a rating decision dated September 1997, the RO did not determine whether the veteran had submitted new and material evidence. Rather, it considered the veteran's claim for service connection for PTSD on a de novo basis. The requirement of submitting new and material evidence to reopen a claim is a material legal issue the Board is required to address on appeal despite the RO's September 1997 action. Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In light of the Board's legal duty to determine whether the veteran has submitted new and material evidence to reopen his previously denied claim, the issue certified by the RO has been rephrased as noted on the title page. REMAND A review of the record reflects that additional development by the RO is necessary before the Board can decide the veteran's claim. During April 1974 and April 1978 VA Diagnostic Staffing and Mental Status evaluations, the veteran reported that he had been hospitalized at a VA Medical Center (MC) in Marion from August 1973 to January 1974, in July 1976, and from October 1976 to April 1977. Records reviewed by a board of medical examiners in May 1988 also refer to a hospitalization of the veteran at the Marion VAMC in 1972. In August 1997, during a VA PTSD examination, the veteran indicated that he was last hospitalized at the VA Medical Center in Marion in 1993. As well, he indicated that he was receiving outpatient treatment there on a monthly basis by a psychiatrist, internist and a rehabilitation physician. Records of the alleged hospitalizations and outpatient treatment are not currently in the claims file. The VA has constructive knowledge of medical records generated by its agency; therefore, the VA is obligated to obtain any such treatment records, provided they are pertinent to the issue on appeal, as well as all other records of which the VA has been notified. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Inasmuch as there are medical records generated by the VA that are outstanding and pertinent to the veteran's claim, this claim needs to be remanded for the RO to secure and associate the records with the veteran's claims file. In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has stated that when the Board addresses a question in its decision that was not addressed by the RO, the Board must consider whether the veteran has been afforded adequate notice and opportunity to submit evidence or argument, as authorized by law, so that the Board does not prejudice the veteran in its opinion by denying those rights. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Here, the veteran should be afforded an opportunity to submit evidence and argument pertinent to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTSD. The veteran should also be provided with the relevant legal criteria governing the reopening of claims. To ensure that the Board's decision is based on a complete record and the veteran is afforded due process of law, this case is REMANDED to the RO for the following development: 1. The RO should take reasonable steps to obtain records of treatment of the veteran, not already of record, from the Marion, Indiana VAMC dated from 1972 to the present. A specific request should be made for those records referenced above. 2. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTSD, consistent with the decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d 1356 (1998). If the benefit sought is not granted, the RO should furnish the veteran and his representative a Supplemental Statement of the Case, which includes the governing legal criteria applicable to reopened claims, and afford them an opportunity to respond thereto before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional medical information and to ensure due process of law. At this time, the Board does not intimate any opinion as to the merits of this appeal. While this claim is in Remand status, the veteran may submit additional evidence in support of his claim. However, he is not required to act until he is further notified by the RO. S. L. KENNEDY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).