Citation Nr: 1124898	
Decision Date: 06/30/11    Archive Date: 07/06/11

DOCKET NO.  06-11 734	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUE

Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from September 1964 to September 1967 and from December 1969 to January 1972.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota.  

The appeal is remanded to the RO via the Appeals Management Center in Washington, DC.  


REMAND

The Veteran is seeking an increased disability rating for his service-connected posttraumatic stress disorder (PTSD).  After reviewing the Veteran's claims folder, the Board concludes that additional development is necessary in order to comply with VA's duty to assist.  See 38 U.S.C.A. §§ 5102, 5103, 5103A.

Pursuant to the Board's June 2009 remand, the RO obtained the Veteran's treatment records, dated from November 2005 to March 2009, from the VA Medical Center in Sioux Falls, South Dakota.  

The October 2009 VA examination for PTSD noted that the Veteran reported having received "a lot" of psychiatric treatment, and indicated that he was last seen in September 2009.  The report also noted that the September 2009 VA treatment record listed diagnoses of recurrent major depression and chronic PTSD.  

Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Under the circumstances of this case, the RO should, with the assistance of the Veteran, attempt to obtain the Veteran's updated VA and private treatment records.

Accordingly, the case is remanded for the following actions:

1.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for an increased evaluation for PTSD.  The Veteran must be provided an opportunity to identify all VA and non-VA medical providers who have treated or examined him for his PTSD since March 1, 2009.  The Veteran must be asked to complete a separate VA Form 21-4142 for any physician or source of treatment or examination he may identify.  Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's updated treatment records, since March 1, 2009, from the VA Medical Center in Sioux Falls, South Dakota.  All attempts to secure this evidence must be documented in the claims file by the RO.  If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.  

2.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2010).