Citation Nr: 1339207 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-28 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for PTSD, assigning a 30 percent evaluation effective February 9, 2006. In August 2012, the Veteran presented sworn testimony during a Central Office hearing in Washington, DC, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. In February 2010, the RO increased the Veteran's disability rating for PTSD to 50 percent, effective February 26, 2009. In October 2012, the Board granted entitlement to a 50 percent disability rating, but no higher, for the entire appeal period. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2013, the Court endorsed a Joint Motion for Remand (JMR) vacating that portion of the Board's decision that denied entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD and remanding the matter for further proceedings. The Board notes that the issues regarding service connection for hypertension and obstructive sleep apnea, to include as secondary to service-connected PTSD were previously remanded in October 2012. However, as development has not been completed, these matters are not currently before the Board. In October 2013, the Veteran's representative submitted additional evidence along with a waiver of consideration by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 20.1304(c) (2013). 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 In the June 2013 JMR the parties agreed that in the October 2012 decision, the Board failed to provide an adequate statement of reasons or bases for its finding that the duty to assist was satisfied. More specifically, the record reveals that the Veteran sought mental health counseling at the Vet Center in Richmond, Virginia; however, the record failed to indicate what efforts, if any were made by VA to request or obtain such record. The Court noted that on his February 2006 claim, the Veteran stated that he had received treatment at the Virginia Vet Center beginning in January 2006. A July 2006 VA treatment record noted that the Veteran had been going to the Vet Center for about 6 months. During his October 2006 VA examination, the Veteran reported that he had mental health counseling at the Vet Center on approximately 10 occasions beginning in February 2006. While the RO's March 2006 notice letter acknowledged that the Veteran had reported that he received treatment at the Vet Center and the Veteran responded by submitting an undated mental status evaluation from the Vet Center, no further attempt was made by VA to obtain additional treatment records. The duty to assist includes the duty to obtain records in the custody of a federal agency or department. 38 C.F.R. § 3.159(c)(2) (2013). The Vet Center is a part of the VA and they provide counseling to assist veterans with a variety of issues. 38 U.S.C.A. § 1712A. According to the claims file, the RO did not attempt to obtain the Vet Center records in this case. Consequently, the Board finds that there are outstanding mental health treatment records from the Vet Center that should be obtained prior to further adjudication of the claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (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). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all treatment records from the Virginia Vet Center located in Richmond, Virginia beginning in January 2006 and associate the records with the Veteran's paper or virtual claims file. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. If any Vet Center treatment records are unable to be located and/or obtained either because such records do not exist or further efforts to obtain the records would be futile, notify the Veteran that such records are not available, explain the efforts made to obtain the records, and inform the Veteran that it is ultimately his responsibility for providing the evidence. 2. After completing the above action, 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 must be readjudicated with consideration of additional evidence added to the Veteran's paper or virtual claims file since the claim was last adjudicated in October 2012. 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. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Thomas H. O'Shay Acting 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) (2013).