Citation Nr: 1819167 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 13-16 705 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1989 to July 1989, from July 1991 to November 1991, and from January 2004 to April 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2010 rating decision in which the RO reopened and granted service connection for PTSD and assigned an initial 30 percent rating, effective March 29, 2010, the date of the petition to reopen the claim was received. In November 2011, the Veteran filed a notice of disagreement with respect to the initial rating assigned. In May 2013, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2013. In April 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In December 2014, the RO denied the Veteran's petition to reopen his claims of service connection for bilateral hearing loss and chronic headaches. The Veteran filed a notice of disagreement with the decision in January 2015. In a March 2017 rating decision, the RO granted service connection for chronic headaches, representing a full grant of the benefits sought. Thus, this issue is no longer on appeal. A SOC was issued in March 2017 as to the issue of bilateral hearing loss and the Veteran filed a substantive appeal in April 2017 and requested a live videoconference hearing. Thus, this issue will be addressed separately following his requested Board hearing. In June 2016, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim (as reflected in the December 2017 supplemental SOC (SSOC)) and returned the matter to the Board for further appellate consideration. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Virtual Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For the reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND 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. The Board remanded the claim in June 2016, in part, to obtain outstanding records pertinent to the claim from the VA Medical Center (VAMCs in East Orange and Brick, New Jersey, and from the Lakewood Veteran Center. As explained below, however, the Board finds that additional action is required. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). VA treatment records were obtained from the East Orange and Brick VAMCs, A July 2015 VA treatment record notes the Veteran continued to be seen weekly at the Lakewood Vet Center. The RO sent several request letters to the Lakewood Veteran Center with no response, however, the RO sent the letters to the incorrect address. The Lakewood Vet Center is located in the Parkway Seventy Plaza, Suite 22N, however, the request letters were sent to Suite 32N. Thus, is it unclear whether the Lakewood Vet Center received the request letters. Accordingly, the Board finds an additional remand is required to obtain the outstanding VA treatment records from the Lakewood Vet Center in compliance with the Board's previous remand. To ensure that all due process requirements are met, and that the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1)(2012); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. 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 prior to adjudicating the matter on appeal. Accordingly, this matter is hereby remanded for the following action: 1. Obtain from the Lakewood Vet Center, located at the Parkway Seventy Plaza, Suite 22N, (and any associated facility(ies) all outstanding pertinent records of mental health evaluation and/or treatment of the Veteran). Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to enable VA to obtain additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After completing the requested actions, and any additional notification and/or development action deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to particularly include that added to the VBMS and/or/Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and all legal authority). 5. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an SSOC that includes citation to and discussion of any additional legal authority considered, along with clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).