Citation Nr: 1301635 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 04-31 926A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial disability rating greater than 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service from January 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. This case first reached the Board in December 2009. In a December 2009 decision, the Board remanded the case for further development. After completion of this development by the RO, the case was returned to the Board for further appellate consideration. In a June 2011 decision, the Board denied the increased rating issue on appeal. The Veteran appealed the Board's decision to deny the increased rating issue to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2012 Court Order and Joint Motion for Remand (Joint Motion) filed by the parties, the Court vacated the Board's decision on the increased rating for PTSD issue and remanded it for compliance with specific instructions. Specifically, first, the Joint Motion directed the Board to consider favorable evidence of record regarding certain psychiatric symptoms and provide adequate reasons or bases for any finding that the Veteran's symptoms do not more closely approximate a disability rating greater than 30 percent for PTSD. See 38 C.F.R. § 4.7 (2012); Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). Second, the Joint Motion directed the Board to address whether staged ratings are appropriate for different time periods during the pendency of the appeal. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) ("staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."); Fenderson v. West, 12 Vet. App. 119 (1999) (when an initial rating is on appeal, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.). Upon return from the Court, the Board sent a letter to the Veteran in September 2012 informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the RO to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1304 (2012). In response, in November 2012, the Veteran's representative submitted additional private medical evidence a waiver of RO consideration. In any event, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Before addressing the merits of the increased initial rating for PTSD, the Board finds that additional development of the evidence is required. First, the Veteran's VA treatment records on file only date to January 2009, over three years ago. Since he has likely received additional relevant treatment, these records should be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Second, VA is also required to make reasonable efforts to obtain all "relevant" records, including private records, which the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1). VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). In this regard, in August 2004, the Veteran indicated that Kaiser Permanente had treated him for his PTSD disability. After a Board remand, the RO contacted the Veteran by letter on two occasions in an attempt to secure these private records. Nonetheless, the Veteran did not complete and return the necessary authorization (VA Form 21-4142) for VA to obtain these records. Regardless, in November 2012, the Veteran's representative submitted private treatment records from Kaiser Permanente, as well as a compact disc (CD) evidently containing additional electronic private treatment records. Unfortunately, upon opening the CD, the Board discovered that the CD was damaged, making it impossible to review the private records contained on the CD. A remand is required for the RO to contact the Veteran and ask that he resubmit these private treatment records from Kaiser Permanente, preferably in written form if possible. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must attempt to secure copies of complete records of all relevant VA medical treatment dated after January 2009 from the VA Medical Centers (VAMCs) in Long Beach, California, and Los Angeles, California. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. The RO/AMC must contact the Veteran and ask that he resubmit private treatment records from Kaiser Permanente, preferably in written form if possible. (The previous Kaiser Permanente treatment records were submitted by the Veteran on a CD in November 2012, but this CD was damaged, making it impossible to review the records in electronic form). 3. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the issue of an initial disability rating greater than 30 percent for PTSD. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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 Supp. 2012). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).