Citation Nr: 18146159 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 07-04 085 DATE: October 30, 2018 REMANDED The claim of entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD), prior to September 27, 2016, is remanded. The claim of entitlement to a total disability rating based upon unemployability (TDIU) due to PTSD, prior to June 17, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to October 1972. This appeal to the Board of Veterans’ Appeals (Board) arose a March 2006 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) implemented the Board’s November 2005 award of service connection for PTSD, and assigned an initial 10 percent disability rating, effective January 31, 2003. In May 2006, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating and effective date. An August 2006 rating decision continued the assigned 10 percent rating but granted an earlier effective date for service connection of December 6, 2001. The Veteran again filed an NOD with the effective date. He was issued a statement of the case (SOC) for both the increased rating and effective date issues in December 2006. He filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2007. In a July 2007 rating decision, the RO granted a higher, 50 percent, rating for service-connected PTSD, effective December 6, 2001. This rating was continued in an April 2011 rating decision. In April 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In June 2012, the Board, inter alia, dismissed the claim for an earlier effective date for the award of service connection for PTSD, and remanded the issue of a higher initial rating for PTSD. In April 2014, the Board, inter alia, expanded the appeal to encompass the matter of entitlement to a TDIU die , pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), and remanded that matter, along with the claim for a higher initial rating for PTSD, to the AOJ. In a February 2017 rating decision, the RO granted a higher, 100 percent rating for service-connected PTSD, effective September 27, 2016. In July 2017, the Board again remanded the claims for a higher initial rating for PTSD and for a TDIU for PTSD to the AOJ. In an April 2018 rating decision, the AOJ granted initial 70 percent rating for PTSD, effective December 6, 2001. As a higher rating for PTSD is available between that date and the September 27, 2016 effective date of the award of the maximum, 100 percent rating, the matter of a higher initial rating prior to the September 27, 2016 remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Also in April 2018, the AOJ granted the Veteran a TDIU, effective June 17, 2010. While it was noted that the award of a TDIU was a complete grant of that benefit sought (and no TDIU issue was addressed in the April 2018 supplemental SOC (SSOC), the Board point out that, as a component of the claim for higher rating for PTSD, pursuant to Rice, the matter of the Veteran’s entitlement to a TDIU due to PTSD, prior to June1 7, 2010, likewise remains viable on appeal. Unfortunately, the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2014 remand, the Board directed the AOJ to obtain the Veteran’s outstanding treatment records from the Cleveland and Chillicothe VA Medical Centers (VAMCs). Following the April 2014 remand, only records from the Cleveland VAMC were obtained. Thus, in the July 2017 remand, the Board directed the AOJ again to obtain records from the Chillicothe VAMC. Again, the AOJ only obtained treatment records from the Cleveland VAMC. 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). Under these circumstances, the Board concludes that substantial compliance with the July 2017 remand directives for these claims has not been achieved. See D’Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, further remand of this matter to obtain the previously requested records from the Chillicothe VAMC is necessary. See Stegall, supra. Also while to ensure that all due process requirements are met, and the record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical and/or employment records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Adjudication of the higher rating claim should include consideration of whether, for the period under consideration staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. The matters are hereby REMANDED for the following action: 1. Obtain from the Chillicothe VAMC (and any associated facility(ies)) all outstanding records of VA hospitalization, evaluation and/or treatment of the Veteran dated since December 29, 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. The Board emphasizes that records must be requested from the Chillicothe VAMC, not the Cleveland VAMC. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, private (non-VA) medical and/or employment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid 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. See Stegall, supra. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining matters on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, for the higher rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel