Citation Nr: 19166364 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 15-26 220A DATE: August 27, 2019 ORDER That part of the April 2019 Board decision that denied a rating in excess of 70 percent for PTSD is vacated. REMANDED Entitlement to a rating in excess of 70 percent for PTSD is remanded. FINDINGS OF FACT 1. The appellant, through counsel, has submitted a Motion to Vacate the Board decision issued in April 2019. 2. The evidence of record demonstrates a prima facie case that the April 2019 Board decision was based on an incomplete record. CONCLUSIONS OF LAW 1. The Veteran was denied due process by the issuance of the April 2019 Board decision. 38 C.F.R. § 20.904(a) (2018). 2. That part of the April 2019 Board decision that denied a rating in excess of 70 percent for PTSD is vacated. 38 U.S.C. § 7104 (a) (2014); 38 C.F.R. § 20.904. REASONS AND BASES FOR FINDING AND CONCLUSION Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. That part of the April 2019 Board decision that denied a rating in excess of 70 percent for PTSD is vacated In May 2019, the Veteran’s representative submitted a Motion to Vacate (Motion) the April 2019 Board decision. The basis of the Motion was that the Veteran was denied due process in that the April 2019 decision, through no fault of the Veteran, was based on an incomplete record. See 05/29/2019 Third Party Correspondence. VACATUR The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. Discussion The Agency of Original Jurisdiction (AOJ) certified the Veteran’s appeal to the Board and notified the Veteran and his representative of the certification in October 2018. See 10/01/2018 VA Form 8; Appeal Notification. Upon receipt of the 90-Day Letter, the Veteran’s representative submitted a request to the Board that a decision not be rendered prior to the elapse of 90 days from the date of the representative’s letter. The basis the representative’s request was that the time was needed to submit additional evidence and a Brief in support of the Veteran. See 10/10/2018 Correspondence. In December 2018, the Veteran’s representative requested an additional 90 days from the date of the December letter. The reason for the request was that the representative was awaiting reports from medical professionals that he believed would be dispositive of the Veteran’s case. See 12/20/2018 Third Party Correspondence. Facially, the digital claims file shows that the VA received the representative’s additional evidence and Brief in support thereof in late February 2019, which was within the additional timeframe requested. The USPS Tracking Number issued to the Veteran’s representative reflects that all evidence submitted was delivered to the Washington, DC postal distribution center in late February 2019, and then to the VA Evidence Intake Center that same week. Nonetheless, as the Veteran’s representative notes in the Motion, the April 2019 Board decision made no mention of the requests for additional time nor was the additional evidence submitted by the Veteran noted or discussed. See 04/02/2019 BVA Decision. To whatever extent the presumption of regularity may apply, the Board finds that it has been rebutted, as the Board finds a sufficient basis from which to infer that, although the additional evidence was in VA’s possession, it was not in fact uploaded to the digital file prior to March 2019 [the month in which the undersigned Veterans Law Judge actually signed the decision]. Thus, the Board finds that, albeit inadvertently, the Veteran was in fact deprived of due process, as the April 2019 Board decision was not based on a complete record. The Board notes that the representative moved to vacate the April 2019 Board decision on both issues addressed in the decision. The issue of entitlement to a total rating on the basis of individual unemployability (TDIU) was remanded in the April 2019 decision. The Board discerns no basis on which to disturb that part of the April 2019 Board decision, especially since the Board remands the issue of an increased rating. REASONS FOR REMAND Entitlement to a rating higher than 70 percent for PTSD is remanded. The additional evidence submitted by the Veteran’s representative included a non-VA psychological evaluation by H.H-G, PhD, as well as a DBQ completed by her, and supporting medical literature. See 02/26/2019 Medical Evidence-Government Facility, 1st Entry, P. 22-27. Also submitted was a statement by the Veteran’s wife in which she described the Veteran’s symptoms and how they have changed during the last couple of years or so. Id., P. 19-21. Although the Dr. H-G indicated on the DBQ that she assessed the Veteran’s impairment at the 70 percent level, the Veteran’s wife’s statement suggests that his impairment may have worsened since the last examination. Hence, the Board finds that an examination to determine current severity has been triggered. The matters are REMANDED for the following action: 1. The AOJ shall obtain and add to the claims file, all treatment records generated since issuance of the SOC and not already a part of the claims file. Ascertain from the Veteran if there are any non-treatment records to be obtained.   2. After the above is complete, regardless of whether additional records are obtained, arrange an examination of the Veteran by an appropriate mental examiner. Ask the examiner to determine the current severity of the Veteran’s PTSD. Instruct the examiner to review the claims file, to include the non-VA evaluation by Dr. H-G, and that all indicated diagnostic tests should be conducted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.