Citation Nr: 1332927 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-12 765 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision in which the RO awarded service connection and assigned an initial, 50 percent rating for PTSD, effective January 24, 2007. The Veteran perfected an appeal with respect to the initial rating assigned. For reasons expressed below, the claim on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND Although the Board regrets the additional delay in this appeal, it is constrained by the fact that proper adjudication requires further development. The Veteran has been assigned an initial 50 percent disability rating for his service-connected PTSD. The Veteran contends that his disability is more severe than what is represented by a 50 percent rating. The Veteran's Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Because there are potentially pertinent, outstanding records referenced in the record, the Veteran's claim must be remanded for compliance with VA's duty to assist the Veteran in substantiating his claim. August 2011 VA treatment records indicate that the Veteran is in receipt of Social Security Disability Insurance (SSDI) benefits, the basis of which is unspecified. As the SSDI records may be relevant to the Veteran's claim, VA has a duty to make reasonable efforts to obtain these records. See 38 C.F.R. § 3.159(c)(2) (2013); see alsoGolz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that if there is a reasonable possibility that Social Security records are relevant to a claim, VA is required to assist the claimant in obtaining the identified records). While this matter is on remand, the RO should also obtain all outstanding records of VA mental health evaluation and/or treatment of the Veteran, to include from the VA Hudson Valley Healthcare System. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the 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). Also, to ensure that all due process requirements are met, and that the record is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, notifying that he has a one-year period for response. See 38 U.S.C.A.§ 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for the Veteran to undergo examination, if appropriate) prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any outstanding, pertinent records of VA mental health evaluation and/or treatment of the Veteran to include from the VA Hudson Valley Healthcare System. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain from the Social Security Administration a copy of the decision pertinent to the Veteran's claim for Social Security disability benefits, as well as the medical records relied upon concerning that claim. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization for it to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted (to include arranging for an examination, if appropriate), adjudicate the matter on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority. 7. If the benefit sought on appeal remains denied, in whole or in part, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).