Citation Nr: 21067464
Decision Date: 11/04/21	Archive Date: 11/04/21

DOCKET NO. 15-41 047A
DATE: November 4, 2021

REMANDED

Entitlement to an increased rating in excess of 30 percent prior to May 21, 2018 and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1981 to September 1984, September 2004 to March 2005, January 2006 to September 2006, March 2008 to September 2008, October 2008 to April 2009, October 2009 to September 2010, and August 2011 to January 2012.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). 

By way of background, in May 2021 the Board remanded the issue on appeal for additional development. In addition, the Board adjudicated the claims for increased ratings for a low back disability and psoriasis. As such, the claims for increased ratings for a low back disability and psoriasis are no longer on appeal. 38 C.F.R. § 20.1100.

1. Entitlement to an increased rating for PTSD.

In May 2021, the Board remanded the current appeal to obtain outstanding Vet Center records and VA treatment records. With respect to the Vet Center records, the Board stated that all records should be obtained, and that if an authorization form was required to obtain the records, the Veteran should be provided with such. In July 2021 correspondence, the RO noted that the record reflected that the Veteran received treatment at a Vet Center, and that he should either authorize such records for release or submit them himself. 38 C.F.R. § 3.159(c)(1). In the August 2021 supplemental statement of the case, the RO noted that the Veteran never submitted either an authorization for release or the records themselves.

In attempting to obtain the Vet Center records the RO appears to have followed the development procedures for private treatment records, which must be either submitted by the Veteran or released so that VA may obtain them on his or her behalf. Id. However, Vet Center records are considered to be federal, not private, records, and therefore the RO should have made as many attempts as necessary to obtain the records until they were associated with the file or it was determined that the records could not be obtained. 38 C.F.R. § 3.159(c)(2); see VA ADJUDICATION MANUAL M21-1 III.i.2.C.1.b. There is no evidence that the Vet Center records are otherwise unavailable or have been destroyed. As such, there has not been substantial compliance with the prior Board remand, and therefore a remand is required so that the RO may make all necessary attempts to obtain the Veteran's Vet Center records. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Concerning the VA treatment records, the Board stated that on remand all outstanding VA treatment records should be obtained an associated with the file. However, no records were associated with the file, despite the fact that VA treatment records previously added to the file reflect that the Veteran receives regular treatment through VA. 38 C.F.R. § 3.159(c)(2). Further, there is no evidence that the RO attempted to obtain any additional records but that none were available. Id. As such, remand is also required so that appropriate efforts to obtain any additional outstanding VA treatment records may be made. Stegall, 11 Vet. App. at 271.

The matters are REMANDED for the following action:

1. Make appropriate efforts to obtain and associated with the file all outstanding Vet Center treatment records.

2. Obtain all outstanding VA treatment records from January 2021 forward.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.