Citation Nr: 1334801 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-19 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for an eating disorder. 2. Entitlement to an initial disability rating in excess of 10 percent prior to May 6, 2010 and 50 percent as of May 6, 2010 for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to October 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2009 and June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is of record. The Board observes that the RO determined that the Veteran's substantive appeal with respect to his increased rating claim for PTSD was not timely as the RO received it 60 days after the issuance of the statement of the case. The statement of the case was sent to the Veteran on March 3, 2010. The Veteran mailed his completed substantive appeal, postmarked May 1, 2010, to his representative. The RO received the Veteran's substantive appeal on May 6, 2010. Although the letter signed by the representative in forwarding the substantive appeal to the RO was dated May 5, 2010, the postmark date is not of record. VA regulations provide that "[i]n the event that the postmark is not of record, the postmark date will be presumed to be 5 days prior to the date of receipt of the document by the Department of Veterans Affairs." 38 C.F.R. § 20.305(a) (2013). Thus, the postmark date of the letter and substantive appeal from the representative is within 60 days from the date of the March 3, 2010 statement of the case. Therefore, the substantive appeal is considered timely and the issue of entitlement to an initial increased rating for PTSD is properly before the Board. 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 After a review of the claims file, the Board finds that a remand is necessary for further development prior to adjudicating the issues on appeal. The Veteran testified at the March 2013 Board hearing that he received private treatment for his PTSD from 2010 to the present. See Hearing Transcript at 4. He also indicated that he received some treatment for his PTSD at the VA as of 2010. Id. The record was left open for 60 days for the Veteran to attempt to obtain these treatment records and submit them to the Board. Additional VA and private treatment records have not been associated with the claims file. VA has a duty to assist the veteran in obtaining relevant records, including private treatment records that the veteran has adequately identified. 38 U.S.C.A. § 5103A(c). VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the veteran's claim for a benefit under a law administered by VA. 38 U.S.C.A. § 5103A. In light of the foregoing, a remand is necessary to attempt to elicit from the Veteran the necessary consent and to obtain these records. Furthermore, the Veteran was not provided with a VA examination with respect to his eating disorder. VA treatment records show that the Veteran has a current diagnosis of an eating disorder. The Veteran asserted in the March 2013 Board hearing that his eating disorder is related to his service-connected PTSD. Furthermore, a VA examiner in January 2012 noted that the Veteran has a history of eating disorder symptoms of binge-purge processes when stressed or feeling deeply depressed. Thus, the evidence of record indicates that the Veteran's eating disorder may be related to the Veteran's service-connected PTSD. In light of the foregoing, the Veteran should be provided with a VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and elicit from him the appropriate information and the consent to obtain any outstanding private treatment records with respect to his PTSD. After securing the appropriate consent from the Veteran, VA should attempt to obtain any such treatment records that have not previously been associated with the Veteran's VA claims folder. 2. Attempt to obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran's PTSD from March 2010 to the present. A response, negative or positive, should be associated with the claims file. Requests must continue until the RO/AMC determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Schedule the Veteran with a VA examination for his service connection claim for an eating disorder by an appropriate specialist. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any eating disorder found on examination or in the treatment record is at least as likely as not (i.e., a fifty percent or greater probability) caused by (due to) or aggravated by (chronically worsened by) the Veteran's service-connected PTSD. The examiner should provide an explanation for all opinions. 4. Upon completion of the foregoing, readjudicate the Veteran's claims of entitlement to service connection for an eating disorder and entitlement to an initial increased rating for PTSD, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 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. 2013). _________________________________________________ MILO H. HAWLEY 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) (2013).