Citation Nr: 20049971 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 08-22 020A DATE: July 28, 2020 REMANDED Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to June 12, 2008, and in excess of 50 percent thereafter, for substitution and/or accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1968 to August 1969, to include service in Vietnam. He died in March 2013. The appellant is his widow, who has been substituted for the Veteran as the appellant for purposes of processing his claim to completion. See 38 U.S.C. § 5121A. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO granted service connection and a 30 percent rating for PTSD, effective October 23, 2003. See April 2008 rating decision. In May 2009, while the appeal was pending, the RO increased the rating to 50 percent, effective June 12, 2008. This case was most recently before the Board in January 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to an initial rating in excess of 30 percent for PTSD prior to June 12, 2008, and in excess of 50 percent thereafter is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant’s claim and to afford her every possible consideration. The Board most recently remanded this case in January 2020. The Board instructed the agency of original jurisdiction (AOJ) to make efforts to obtain records of the Veteran’s retirement in 2007 from the railroad (Norfolk-Southern or Norfolk & Western). In May 2020, the appellant’s representative noted that Norfolk Southern Corporation was contacted which advised the representative to contact the Railroad Retirement Board. However, the Railroad Retirement Board simply returned the appellant’s letter. The record contains a letter, presumably from the U.S. Railroad Retirement Board, stating it was believed the letter should be mailed to Norfolk Southern. The U.S. Railroad Retirement Board administers retirement, survivor, unemployment, and sickness benefits for U.S. railroad workers and their families. As such they are a Federal agency. Under the law, VA is to make as many requests as are necessary to obtain relevant records from a Federal agency, and may end efforts to obtain relevant records from a Federal agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c). The current evidence of record does not demonstrate that VA has made any attempts to obtain records from the U. S. Railroad Retirement Board. As such, the records should have been requested prior to readjudication of the appellantS’s claim. 38 C.F.R. § 3.159(c). The comments from the appellant’s representative, and the letter from the U.S. Railroad Retirement Board, indicate that relevant records may exist at Norfolk Southern. VA has not attempted to obtain such records. These records could be relevant to the appellant’s claim. As such, the records should have been requested prior to readjudication of the appellant’s claim. 38 C.F.R. § 3.159(b). Because VA has not attempted to obtain the records related to the Veteran’s retirement a remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers upon the claimant, as a matter of law, the right to compliance with the remand order). The matters are REMANDED for the following action: 1. Ask the appellant to submit or provide the relevant information for VA to obtain records of the Veteran’s retirement in 2007 from the Railroad (Norfolk-Southern or Norfolk & Western), reportedly due to both physical and mental disability. Thereafter, make efforts to obtain these records and document all attempts. If efforts to obtain the additional records are unsuccessful, notify the appellant of this and explain any further actions VA will take regarding her claims. 2. Ask the U.S. Railroad Retirement Board to provide copies of any records in its possession pertaining to the Veteran’s retirement, to include any medical records considered, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the appellant, and her representative should be notified 3. If any relevant records are obtained, submit the claims file to an appropriate VA examiner to determine the severity of the Veteran’s PTSD throughout the appeal period, up to the time of his death in March 2013. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.