Citation Nr: 1803085 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-35 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from June 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) following a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating effective from May 31, 2006. In March 2015, the Board issued a decision which remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU) for additional development, denied service connection for disequilibrium, and denied a rating higher than 30 percent for PTSD. The Veteran appealed the denials to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a December 2015 Joint Motion for Remand (JMR) filed by the parties, these issues were remanded back to the Board for further action consistent with the terms of the JMR. In a March 2016 decision, the Board denied a rating higher than 30 percent for PTSD and remanded the issue of entitlement to service connection for disequilibrium and a TDIU for additional development. In a subsequent October 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for benign paroxysmal positional vertigo, claimed as disequilibrium, rated as noncompensable effective May 31, 2006 and as 10 percent disabling from April 14, 2016. The Veteran timely appealed the initial ratings assigned, and thus that matter is now properly before the Board. However, in light of the procedural history of this case, including appeals originating from both the St. Louis and the Chicago RO, separate decisions are required. See BVA Directive 8430, Board of Veterans' Appeals, Decision Preparation and Processing, 14(c)(1) (providing that where there are matters arising out of two or more agencies of original jurisdiction, separate decisions are required). In a February 2017 decision, the Board remanded the issue of entitlement to a TDIU for additional development. It remains in remand status and will be the subject of a subsequent decision, if necessary. The Veteran appealed the Board's March 2016 denial of a rating higher than 30 percent for PTSD to the Court. Pursuant to a May 2017 JMR filed by the parties, this issue was remanded back to the Board for further action consistent with the terms of the JMR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran contends that a higher rating is warranted for his service-connected PTSD. Remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In the May 2017 JMR, the parties indicated that the Board failed to provide adequate reasons and bases for why the Veteran did not qualify for a disability rating in excess of 30 percent for PTSD. In August 2017, the Veteran underwent a VA PTSD examination, but a Supplemental Statement of the Case (SSOC) considering that evidence has not been provided. Thus, the AOJ must readjudicate the issue on appeal giving consideration to all evidence currently of record. 38 C.F.R. § 19.31. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records dated from June 2017 and associate them with the record. If the search for such records has negative results, the AOJ should notify the Veteran and place a statement to that effect in the claims file. 2. After any additional development deemed necessary has been completed, the AOJ should review the case again based on the additional evidence received since the May 2014 SOC. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further 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. §§ 5109B, 7112 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).