Citation Nr: 21064659
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 12-17 433
DATE: October 21, 2021

REMANDED

Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and major depressive disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1971 to November 1973.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

A Board hearing was held before the undersigned in October 2012. A transcript of the hearing is of record.

This matter was previously before the Board in July 2015, August 2018, and September 2020 when it was remanded for further development. 

In a February 2021 rating decision, the Veteran was granted a total disability rating for individual unemployability (TDIU) from an earlier effective date of November 10, 2008. As the decision constitutes a full grant of the claim previously before the Board, the matter is no longer before the Board and will not be discussed further.

 

Entitlement to an initial rating in excess of 70 percent for PTSD and major depressive disorder is remanded.

Although the additional delay is regrettable, the Board finds another remand is required as there has not been substantial compliance with the September 2020 Board remand. In the September 2020 Board remand order, the Board asked the Agency of Original Jurisdiction (AOJ) to request from the Social Security Administration (SSA) all documents pertaining to any application by the Veteran for SSA disability benefits, including a transcript of the Veteran's November 28, 2012 SSA hearing. If any documents could not be obtained, the AOJ was directed to record a negative search result in the record. 

In October 2020, the AOJ requested records from the SSA, asking that they provide a copy of any decision made pursuant to a claim of the Veteran for disability benefits, as well as the medical records upon which any decision was based. The request did not specifically request a transcript of the November 2012 SSA hearing. Thus, SSA records provided in October 2020 did not contain a copy of the requested hearing transcript or any indication that the transcript could not be provided. In light of this, the Board finds remand is required to ensure substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance).

The matters are REMANDED for the following action:

1. Obtain any updated VA treatment records for the period from January 2021 to the present.

 

2. Request from the SSA a copy of the Veteran's November 28, 2012 SSA hearing transcript. Any negative search response must be noted in the record and communicated to the Veteran. 

 

 

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Jiggetts

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.