Citation Nr: 1827166 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 13-18 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 16, 2015. 2. Entitlement to an evaluation in excess of 70 percent for PTSD on or after August 17, 2015. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Kuczynski, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In that decision, the RO increased the evaluation for PTSD from 30 percent to 50 percent, effective September 15, 2010. During the pendency of the appeal, in a September 2015 rating decision the RO increased the evaluation to 70 percent, effective August 17, 2015. Nevertheless, as the staged 50 percent and 70 percent evaluations do not represent the highest possible benefit, the issue remains in appellate status, as recharacterized above. AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2014, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript is of record. He was provided the opportunity to testify at another hearing before a different Veterans Law Judge, but he declined the option for a second hearing in July 2017. The Board remanded the case for further development in April 2015. The case has since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The file contains additional evidence, including VA treatment records obtained by the AOJ, since the September 2016 supplemental statement of the case (SSOC). This evidence has not been considered by the AOJ, and there is no automatic waiver for evidence obtained by VA. In March 2018, the Board sent a letter to the Veteran and his representative informing them that the Veteran has the right to have the AOJ consider the evidence. They were provided the opportunity to submit a waiver of that right. The Veteran responded in the same month that he wanted the AOJ to have initial consideration of the additional evidence and requested that the case be remanded. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who had provided treatment for his PTSD. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records which have not yet been associated with the claims file, to include any records dated since October 2016. 2. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Further development may include affording the Veteran a VA examination if deemed necessary. 3. The case should be reviewed by the AOJ on the basis of additional evidence received since the claim was last readjudicated. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ J.W. ZISSIMOS 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).