Citation Nr: 21062932
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 17-46 757
DATE: October 12, 2021

REMANDED

Entitlement to an effective date prior to February 3, 2014, for the award of a 100 percent disability rating for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran had honorable active-duty service with the United States Navy from July 1970 to July 1972.

This matter is before the Board of Veteran's Appeals (Board) from the March 2015 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago Illinois, that at first denied the request for an earlier effective date for the Veteran's PTSD and then granted the earlier effective date for the Veteran's PTSD to February 3, 2014, at 100 percent disabling.

A May 2019 Board decision denied entitlement to an effective date prior to February 3, 2014, for a 100 percent evaluation for the Veteran's PTSD. Additionally, the Board found that the May 2008 rating decision was final because no Notice of Disagreement, new evidence, and/or claim to reopen were received during the appeal period. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). An April 2021 Memorandum Decision vacated the Board's decision and returned the claims to the Board.

1. Entitlement to an effective date prior to February 3, 2014, for the award of a 100 percent disability rating for PTSD is remanded.

In the April 2021 Memorandum Decision, the Court found that the Board erred when it improperly failed to determine whether a social worker's letter, which is dated within the 1-year appeal period, was constructively received by VA within the applicable appeal period and, if so, whether it constitutes new and material evidence for purposes of §3.156(b). Further, because the Board did not make a factual finding as to whether the letter was received within the 1-year appeal period, and whether the letter was new and material, its statement of reasons or bases for finding the May 2008 decision final was inadequate. 

Accordingly, the Court found that remand is required for the Board to make these factual findings in the first instance. See Hensley v. West, 212F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial fact finding."); see also Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) ("[T]he evaluation and weighing of evidence are factual determinations committed to the discretion of the factfinderin this case, the Board."). 

However, the Board finds that a determination as to the finality of the May 2008 rating decision cannot be made at this time because the Veteran's complete Vet center records, identified by the Veteran as existing prior to the May 2008 decision, are not available for review. See VA Form 21-526 received October 2006 (identifying treatment at the Vet Center). See generally Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.) for determining that Vet Center records are generated by VA agents or employees which are deemed within the Secretary's control and, thus, are deemed constructively of record). Therefore, a remand is necessary obtain these records.

The matters are REMANDED for the following action:

1. Obtain all outstanding, pertinent records of treatment of the Veteran from the Vet Center/Veteran's Resource Center, Gresham VA Clinic, since September 2006. If necessary, send and request the Veteran to execute VA Form 21-4142 and VA Form 21-4142a. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified as such.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Patrick C. Brady, 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.