Citation Nr: 20008532 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 12-10 324 DATE: January 31, 2020 REMAND Entitlement to an evaluation in excess of 70 percent disabling prior to February 11, 2016 and in excess of 30 percent thereafter for posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1965 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a videoconference hearing before an Acting Veterans Law Judge in January 2015. A transcript of that hearing has been associated with the claims file. The person who presided over that hearing is no longer with the Board. In a March 2017 letter, the Veteran was notified of that fact and informed of his right to elect to have a new hearing before a current member of the Board. In a June 2017 response, the Veteran elected to forgo an additional hearing and expressed his desire to have his case decided based on the evidence currently of record. The Board remanded the appeal in November 2015 and July 2017 for additional development, and adjudicated the claim in an April 2018 decision, awarding entitlement to an initial disability rating of 70 percent, but no higher, prior to February 11, 2016, and 30 percent thereafter. The Veteran appealed the April 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In February 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s decision in part, not disturbing the award of an initial increased evaluation. Thus, the issue is characterized as indicated. Entitlement to an evaluation in excess of 70 percent disabling prior to February 11, 2016 and in excess of 30 percent thereafter for PTSD. The JMPR found that the Board's previous decision provided an inadequate statement of reasons or bases for awarding entitlement to disability evaluations in excess of the currently assigned ratings. The JMPR identified four primary errors in the April 2018 determination. First, that the Board inappropriately relied upon the listing of symptoms associated with the next-higher rating criteria as a basis for denial. Second, the Board failed to consider potentially favorable evidence including testimony from the Veteran and his wife about his hygiene and statements regarding the Veteran’s lack of a social life including estrangement from his daughter, multiple separations from his spouse, and lack of friends. The JMPR additionally found that the Board did not adequately address whether the duty to assist was satisfied with regards to treatment records from the Detroit Vet Center and whether the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) was reasonably raised by the record. Duty to Assist Upon review of the record the Board finds that additional development is necessary to address the lack of Detroit Veteran Center records associated with the claims file prior to final adjudication of the matter. This case has been before the Board on three separate occasions. In November 2015, the Board remanded this issue to afford the Veteran a new VA examination and to obtain counseling treatment records from the Detroit Vet Center. In July 2017, the Board remanded this issue to obtain another examination and records from the Detroit Vet Center. As noted in the JMPR and in the December 2017 supplemental statement of the case (SSOC) the Veteran failed to provide an authorization for the Vet Center records. To date the RO has not received either a response from the Veteran or additional pertinent medical evidence. Pursuant to VA's duty to assist, VA is required to attempt to obtain VA medical records where the claimant provides "enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided." 38 C.F.R. § 3.159 (c)(3). The Veteran has met this burden with his descriptions of care from the Detroit Vet Center, therefore, this matter must be remanded to obtain these records in order to satisfy VA's duty to assist. The Board, however, notes that while the VA has a duty to assist the Veteran, the duty to assist is not a one-way street, and accordingly expects cooperation from the Veteran or the matter will have to be decided upon the only facts associated with the record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private mental health records, to specifically include records from the VA Medical Center in Detroit and the Detroit Vet Center, and associate them with the claims file. (Continued on the next page)   Ask the Veteran to complete a VA Form 21-4142 for the Detroit Vet Center if necessary, to obtain these records. After any needed authorization is received, obtain copies of the records of the Veteran’s treatment at the facility through to the present. Document all requests for information as well as all responses in the claims file. 2. Then, after taking any additional development as may become indicated, re-adjudicate the issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.