Citation Nr: 1340339 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-25 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Sadia Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to May 1970 and March 1975 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that rating action, the RO increased the Veteran's disability rating from 30 percent to 50 percent. The Veteran indicated his disagreement with the RO's decision in his March 2010 notice of disagreement and perfected his appeal with a VA Form 9 in June 2010. The Board notes that the Veteran requested to appear before a member of the Board in a videoconference hearing in his June 2010 VA Form 9. In July 2010, the Veteran withdrew his request for a videoconference hearing and requested a hearing before a RO decision review officer. A hearing before the RO's decision review officer was held in March 2011 and the RO issued a supplemental statement of the case in May 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The appeal is remanded to ensure compliance with applicable law. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran requested an increase in his disability rating for his service connected PTSD in July 2009. Prior to this date, the claims file contains a paucity of documents. However, it appears that the Veteran was service connected for his PTSD in 1991 or 1998, although no copy of any rating action from the 1991 or 1998 is in the claims file. Other than copies of documents submitted by the Veteran, such as a 1995 rating decision denying an earlier effective date for PTSD, there are no other documents in the file prior to the 2009 claim. It appears the RO has made only one attempt to find the missing documents. In September 2009 communications, an employee of the Waco, Texas RO asked an employee of the Los Angeles, California RO to search for the Veteran's records under two possible claims file numbers, but the search was only conducted under one number. Moreover, this appears to be the extent of the RO's efforts to locate the contents of the Veteran's file prior to 2009. It is particularly important to attempt to find the missing records and to reconstruct the file as completely as possible as any new and material evidence submitted within the appeal period of prior rating decisions for PTSD would impact the effective date of any increase awarded in this appeal. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran has also indicated he received treatment for his PTSD from the Livermore VA Medical Center (VAMC), Menlo Park VAMC, Palo Alto VAMC, and the Vietnam Veterans Outreach Center in Northridge California, but the file only contains records from the VA healthcare system in Texas. On remand, these additional records must be requested. Therefore, remand is required to attempt to locate the missing records dated prior to 2009 and to request any outstanding VA and private treatment records that have not already been associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall obtain outstanding records of VA treatment from all VAMCs identified by the Veteran. If no additional records are available, include documentation of the unavailability in the claims file. 2. The RO/AMC shall provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. Associate any available records with the claims file. Make at least two (2) attempts to obtain records from any private sources. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 3. The RO/AMC shall make attempts to locate the missing records from the Veteran's file and attempt to reconstruct the file with respect to actions taken prior to the 2009 claim. The RO/AMC should fully document its actions to locate the missing records. 4. Thereafter, the RO/AMC should readjudicate the claim. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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. 2012). _________________________________________________ M. N. HYLAND Acting 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).