Citation Nr: 20039956 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-30 789 DATE: June 11, 2020 REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army during Peacetime from August 1981 to August 1984, and during the Gulf War era from January 1991 to March 1991, October 2004 to October 2005, September 2006 to March 2008, and July 2010 to December 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. In January 2019, the Board remanded the matter to obtain any updated medical records, both private and VA, including any outstanding treatment records with the clinician that completed the June 2015 private PTSD Disability Benefits Questionnaire (DBQ) examination. Additionally, to afford the Veteran a VA examination to evaluate the current severity of his PTSD. The Board instructed that the examiner should directly address the two private opinions submitted by the Veteran in April 2014 and June 2015. For the reasons noted below, this matter is remanded as the Board finds that the RO did not substantially comply with that portion of the March 2019 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran is entitled to substantial compliance with the mandates set forth in Board remands. Id. Additionally, although the Veteran was afforded a VA PTSD examination in July 2019, the examination record does not indicate that the examiner reviewed the April 2014 and June 2015 private examinations. In the examination report, the VA examiner noted the VA e-folder and CPRS as the evidence reviewed. The examiner commented on the Veteran’s VA psychiatric treatment from July 2017, but did not directly addresses the two April 2014 and June 2015 private opinions, as directed in the January 2019 Board remand. The significance of the Boards’ directive is that for the period on appeal, these records include past periods in which the Veteran was evaluated, which may more accurately reflect the Veteran’s severity level at a given time period on appeal. This would allow the Board to properly adjudicate the matter of determining which PTSD rating more closely approximates the Veteran’s severity level for the entire period on appeal. Thus, claim is necessary to ensure substantial compliance with the Board remand. Stegall, 11 Vet. App. at 271. The Board acknowledges that the RO sent the Veteran a letter in March 2019 requesting that he identify any outstanding medical records pertinent to his claim, to include the private physician who conducted the June 2015 DBQ, and included a General Release form to allow VA to obtain these records. However, the Veteran (or his representative) did not respond to this request. As the claim is being remanded for additional development, the RO should make another attempt to obtain this evidence. As the Veteran is represented by a private attorney, the Board is confident that he has been advised that VA’s duty to assist is not a one-way street and that he also has an obligation to cooperate with VA in ensuring that duty is satisfied. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). Finally, the Board notes that additional VA treatment records were associated with the claims file after the Veteran’s claim was last adjudicated in the April 2020 Supplemental Statement of the Case. The Veteran has not waived the RO’s initial consideration of this evidence, which must be review while on remand. The matter is REMANDED for the following action: 1. Obtain any updated medical records, both private and VA, and associate them with the claims file, including any outstanding treatment records with the clinician that conducted the June 2015 DBQ. All efforts to obtain any outstanding medical records must be documented in the Veteran’s claims file. 2. Once the aforementioned evidentiary development is complete, the Veteran should be afforded a VA examination, by a clinician other than the July 2019 VA examiner, to evaluate the current severity of his service-connected PTSD. An examination may be scheduled if the examiner deems it necessary and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file, including a copy of this remand, should be made available to the examiner for review prior to the examination. The examiner should acknowledge such review in the examination report. The examiner should, to the extent possible, distinguish symptoms attributable to service-connected PTSD from his service-connected TBI. Moreover, the examiner should directly address the two private opinions submitted by the Veteran in April 2014 and June 2015. The RO must review the examination report to ensure that it complies with these directives and undertake corrective action to correct any deficiencies. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, Associate Counsel 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.