Citation Nr: 1339655 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-25 741 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a rating for post-traumatic stress disorder (PTSD) with depression in excess of 50 percent. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Ozger, Associate Counsel INTRODUCTION The Veteran had honorable active duty service from November 2002 to August 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2009 rating decision in which the RO continued to assign a 50 percent disability rating for the evaluation of PTSD with depression. In August 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2010. During the pendency of the claim, the Veteran relocated to Idaho. As such, the current jurisdiction lies with VA RO in Boise, Idaho. The Board also notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they contain evidence relevant to the issue on appeal and any future consideration of this Veteran's case should take into account the existence of this electronic record. When the present claim arose in June 2009, the Veteran was represented by The American Legion. However, in May 2011, the Veteran submitted a completed VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of the California Department of Veterans Affairs, which effectively revoked The American Legion as the Veteran's representative. Subsequent to May 2011, the RO has sent a Board hearing notice letter to the American Legion. The Board notes that in August 2010, the Veteran's representative informed VA that the Veteran no longer wanted a Board hearing. Additionally, the California Department of Veteran Affairs did not receive a copy of the August 2013 Supplemental Statement of the Case. These matters will be discussed in the remand section. The Board notes that the Veteran was scheduled for a Video Board hearing in October 2013, however, our electronic system notes that the Veteran failed to report for a Board Video hearing on November 6, 2013. Given this discrepancy, the Board will clarify whether the Veteran wants a Video Board hearing in the Remand below. For reasons expressed below, the matter on appeal is being REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. The Veteran underwent a VA examination in July 2013 to assess the severity of his PTSD. During the examination, the examiner noted that the Veteran "was also engaged in psychotherapy for PTSD at two Vet Centers in California." The examiner stated as follows: "Those records were not available for review; however, [the Veteran] signed a Release of Information and the records were requested (to be sent directly to this examiner)." Review of the claims file reveals that although various VA outpatient treatment records have been obtained, no request has been made for any Vet Center records. 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). Hence, the RO should obtain all relevant Vet Centers records, as well as all outstanding records of VA treatment and/or evaluation of the Veteran for his service-connected PTSD from 2008 to the present. This request includes VA records which are not already of record. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain from the Vet Centers in California all outstanding, pertinent records of evaluation and/or treatment of the Veteran for PTSD. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for an increased rating for PTSD that is not currently of record. If the Veteran responds, assist him in obtaining any additional evidence identified. All records/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. 3. Clarify whether the Veteran intended to withdraw his request for a Video Board hearing. Send a copy of this letter to the Veteran's representative as well. If no intent to withdraw, schedule Vet for Video Board hearing. 4. Send a copy of the August 2013 supplemental Statement of the Case to the representative of record. 5. Following the receipt of any additional records, including those from the VetCenter in California or any additional VA records, send the claims file, including the newly associated records to the examiner who conducted the July 2013 examination report. The examiner should state whether the additional reports change the findings noted in the July 2013 VA examination report, and if so, the examiner should identify such changes. The examiner should state whether the additional reports indicate increase impairment in the Veteran's social and occupational adaptability. If an increase is found, the examiner should identify the symptoms causing such increase and how those symptoms affect his social and occupational adaptability. If the examiner finds that the Veteran should be scheduled for another examination to address whether the Veteran's service-connected PTSD has increased in severity, such should be scheduled. 6. To help avoid a future remand, ensure that all 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. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the matter on appeal in light of pertinent evidence (to particularly include all that is added to the record since the RO's last adjudication of the claim), and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC 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 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ K. OSBORNE 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).