Citation Nr: 21064944
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 13-25 859
DATE: October 22, 2021

REMANDED

Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with dysthymia prior to May 10, 2016, and in excess of 70 percent thereafter is remanded.

REASONS FOR REMAND

The Veteran served active duty from July 2002 to May 2005.

In June 2015, the Veteran testified at a hearing before the Board of Veterans' Appeals (Board); the Veterans Law Judge (VLJ) who conducted that hearing is no longer employed by the Board.  The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal.  38 U.S.C. § 7107(c).  In March 2020, the Board sent a letter to the Veteran offering him the opportunity to request another optional Board hearing with a VLJ who would decide his appeal.  He did not respond to that letter and it was not returned as undeliverable; accordingly, his appeal is reassigned to the undersigned VLJ for a decision.  See 38 C.F.R. § 19.3(b).  

This claim is on appeal to the Board from an April 2012 rating decision.  Most recently, the Veteran's claim was remanded by the Board in December 2019 to obtain an addendum opinion regarding the severity of his mental health disorder.  This was completed in February 2020 and his claim was readjudicated in a February 2020 Supplemental Statement of the Case (SSOC).  Thereafter, in April 2020 and September 2020, additional VA treatment records were associated with the evidence of record before the Board; however, no additional SSOC was provided.  Accordingly, the Board sent the Veteran a letter in March 2021 indicating that he had the right to have the AOJ review this evidence in the first instance or offering him the opportunity to provide a waiver of initial AOJ review.  The Veteran did not respond to that letter and it was not returned as undeliverable.  Given that the Veteran's claim is a legacy appeal, a remand is required for issuance of a SSOC which considers this evidence.  See 38 C.F.R. § 19.31.

While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).  The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999). 

The matters are REMANDED for the following action:

1. Obtain all outstanding VA treatment records and associate them with the evidence of record.

2. Thereafter, readjudicate the Veteran's claim in a Supplemental Statement of the Case.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	O'Connell, Jessica L.

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.