Citation Nr: 1627239	
Decision Date: 07/08/16    Archive Date: 07/14/16

DOCKET NO.  14-24 429A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) with major depression.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1996 to November 1998.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This appeal was processed entirely electronically using Virtual VA and the Veterans Benefits Management System (VBMS), which are paperless claims processing systems.  Accordingly, all future consideration of this Veteran's case must bear this in mind, that is, that there is no physical file.

The claim is being REMANDED to the Agency of Original Jurisdiction (AOJ).


REMAND

Concerning this issue of whether the Veteran is entitled to a disability rating higher than 50 percent for his PTSD with major depression, the Board sees that his electronic claims file appears to be missing documents.  This may be due, in part, to the fact that several appeals apparently are pending.  The Veteran's Notice of Disagreement (NOD), Veterans Claims Assistance Act (VCAA) notice, claim, and all records prior to September 2011 do not appear to be included in the electronic record as presently constituted.  Given that these records are relevant, they must be obtained and associated with the file prior to the scheduling of the hearing that he is additionally requesting, and which is additional reason for remanding his claim.

On his March 2014 VA Form 9 (Substantive Appeal to the Board), the Veteran indicated he wanted a hearing before the Board concerning his claim for a higher rating for his PTSD.  In a November 2015 statement, he specified that he wanted a videoconference hearing at the RO in Los Angeles, California.


Accordingly, this claim is REMANDED for the following actions:

1. Obtain copies of the complete updated VA clinical and private records of all evaluations and treatment the Veteran received for his service-connected PTSD.  All outstanding documents regarding the Veteran's claims should be obtained and associated with the electronic claims folder.  All requests for records and responses must be associated with the claims folder.  If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, notify the Veteran and (a) identify the specific unavailable records; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim.  Give the Veteran an opportunity to respond.

2. Ask the Veteran to provide a release for relevant outstanding private records of treatment.  If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159 (2015).  Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file.

3. After the above has been completed, schedule the Veteran for a videoconference hearing before a Veterans Law Judge of the Board, at the Los Angeles, California, RO, regarding his claim for a disability rating in excess of 50 percent for PTSD.  Notify him of the time, date and location of this hearing.  Put a copy of this notification letter in his claims file.  If he changes his mind and elects not to have this hearing, or fails to report for it on the date it is scheduled to occur, then also document this in his claims file.  After he has been afforded the opportunity for this hearing, also return this claim to the Board for further appellate consideration.

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 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 2014).




_________________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).