Citation Nr: 21066628 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-19 861 DATE: November 1, 2021 REMANDED Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD) prior to May 15, 2019 and a staged initial rating greater than 70 percent thereafter is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 2004 to April 2005. He also had inactive duty for training from November 2002 to May 2003. The Veteran also had active duty service in the United States Air Force from December 2009 to October 2010. Entitlement to an initial rating greater than 50 percent for PTSD prior to May 15, 2019 and a staged initial rating greater than 70 percent thereafter and entitlement to a TDIU are remanded. Since the RO last considered the Veteran claims in July 2021, additional evidence pertinent to the claims has been added to the claims file in the form of a December 2020 letter from the Veteran's treating VA psychologist and an October 2020 lay statement from K.E. Although an automatic waiver of Agency of Original Jurisdiction (AOJ) consideration would normally apply to this evidence because the Veteran's substantive appeal was received after February 2, 2013 and the evidence was submitted by the Veteran or his representative, the Veteran's representative has specifically requested RO consideration of this evidence in the first instance. See August 2021 Representative argument; see also 38 U.S.C. § 7105(e). Accordingly, remand for AOJ consideration of this newly submitted evidence is warranted. In addition, during the Veteran's November 2020 hearing before the AOJ, the Veteran's representative raised a challenge regarding the competency of the September 2020 VA examiner, and requested that the AOJ provide the examiner's credentials to provide the September 2020 assessment of the Veteran's PTSD. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the Veteran may challenge the competency of an examiner. Since the examiner's competency has been challenged, a remand is necessary to obtain information regarding the examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). Upon remand, the AOJ should provide the Veteran information regarding the September 2020 VA examiner's medical qualifications. Thereafter, a new VA examination to assess the severity of the Veteran's PTSD should be conducted, as the evidence of record suggests that the Veteran's PTSD may have worsened in severity. In that regard, in a December 2020 letter, the Veteran's treating VA psychologist reported that the Veteran's PTSD has worsened, and that his symptoms were "very severe." Last, the Veteran should be provided with another letter requesting that he submit the required authorizations to obtain his medical treatment records from the Vet Center from 2013 to the present and his employment records, or that he submit these records on his own. The Veteran is advised that, if he wishes for VA to obtain these records on his behalf, he is required to submit proper authorizations for VA to do so. As the U.S. Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The matters are REMANDED for the following action: 1. Provide the Veteran information regarding the qualifications of the September 2020 VA examiner, to include a curriculum vitae or other similar material and include copies of the information provided to the Veteran in the claims file. 2. Send the Veteran a letter asking that he complete a VA Form 21-4142 to allow VA to obtain his Vet Center records from 2013 to the present. Advise the Veteran that, if he fails to submit the required authorization, VA will not be able to request his identified records. All actions to obtain these records should be documented in the claims file. 3. Ask the Veteran to complete the required authorization to allow VA to obtain his employment records, including records pertaining to short-term disability and/or long-term absences from work due to disability and disciplinary action or written reprimands. Advise the Veteran that, if he fails to submit the required authorization, VA will not be able to request his identified records. All actions to obtain these records should be documented in the claims file. 4. Schedule the Veteran for a comprehensive VA psychiatric examination to determine the current severity of his PTSD. The evidence of record, in the form of electronic records, and any additional VA treatment or evaluation records in digital formats must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must provide fully descriptive assessments of all psychiatric symptoms. The examiner must comment on the presence or absence, and the frequency, severity, and duration of symptoms due to PTSD and discuss the effects of those symptoms on the Veteran's occupational and social functioning. The examiner must also conduct a mental status examination. 5. Readjudicate the issues on appeal, with consideration of all the evidence of record. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the issues to the Board, if otherwise in order. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.