Citation Nr: 21071598 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-26 733 DATE: November 30, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD), prior to July 13, 2016. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REASONS FOR REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision that continued a 50 percent rating for PTSD and denied entitlement to a TDIU. In this regard, the Board notes that the initial 50 percent rating assigned for PTSD was awarded in an August 2010 rating decision which the Veteran did not appeal. Instead, the Veteran filed a TDIU claim in November 2010 that was denied in the May 2011 rating decision on appeal. A review of the record reveals that VA treatment records were generated during the one-year appeal period following the issuance of the August 2010 rating decision, but the subsequent May 2011 rating decision did not include a determination as to whether that evidence was new and material evidence relevant to the increased rating and TDIU claims. See 38 C.F.R. § 3.156(b); Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). Therefore, the Veteran's increased rating claim includes consideration of the proper rating for the PTSD disability since the initial grant of service connection, i.e., September 4, 2009. In May 2016, the Veteran testified at a Travel Board hearing before Veterans Law Judge (VLJ) Howell. Thereafter, in January 2018, the Board remanded this appeal for additional evidentiary development after which the appeal was returned to the Board for further consideration. In April 2018, the Veteran requested an additional Board hearing and, in December 2020, the Veteran testified before VLJ Donohue. The law provides that a VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals may be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when a veteran has had a hearing before two separate VLJs covering one or more of the same claims on appeal, a third VLJ is assigned to participate in a panel decision with respect to those claims. In August 2021, the Board sent the Veteran and his representative a letter that offered an opportunity to appear at a hearing before a third VLJ. The letter also informed the Veteran that, if no response was received within 30 days of the date of the letter, the Board would assume he did not want a third hearing. To date, no response has been received; thus, a third hearing is not warranted, and all due process has been afforded the Veteran with respect to his right to a hearing. As noted, in January 2018, the Board remanded this appeal for additional evidentiary development, to include obtaining VA treatment records dated after December 2011, as the lay and medical evidenced of record showed the Veteran had been receiving VA psychiatric treatment on a regular basis for several years. Following the remand, medical records from the VAMC in East Orange, New Jersey, and the VA New York Harbor Healthcare System were associated with the file. These records do not include any VA mental health treatment records dated after December 2011. Although the records obtained following the Board's remand do not document psychiatric treatment, they do suggest that such treatment was occurring. For example, a neurology consultation performed in February 2018 that noted the Veteran would be evaluated again and by pain/psychiatry on May 11, 2018. In light of the Veteran's repeated assertions of ongoing VA psychiatric treatment, and the evidence suggesting that such treatment was taking place, the Board finds that another effort must be made to obtain the missing records. If VA is unable to obtain his records, the notification procedures in 38 C.F.R. § 3.159(e) must be followed. Similarly, the Veteran submitted a medical opinion in support of his claim in March 2021. In this report, the clinician notes that they had reviewed "97 pages of records sent by his attorney in 2016." These records do not appear to be associated with the claims file and the Veteran's attorney is encouraged to submit such records on remand. Finally, in November 2020, the Veteran's attorney requested that VA provide the qualifications of the examiner who conducted a VA compensation and pension examination. As a general matter, when there is a challenge to the competence of a VA examiner, VA has an obligation to provide the requested information as to competence. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist). The Board observes that the November 2020 letter did not identify what examination was being challenged. However, the Veteran was afforded VA psychiatric examinations in December 2010 and December 2011 and the Board will assume that these are the examinations being challenged. As such, the Veteran should be afforded the qualifications of these examiners, if available. Should the Veteran request an additional examiner's qualifications, they are encouraged to submit an additional request. The matters are REMANDED for the following actions: 1. Contact the Veteran's attorney and request that they submit the 97 pages of medical records referenced in the March 2021 private medical opinion. 2. Contact the Veteran and request that he clarify what VA facility(ies) have been providing psychiatric treatment from December 2011 to the present. The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. If psychiatric treatment records are unavailable, the Veteran and his attorney should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Information regarding the qualifications the December 2010 and November 2011 VA examiners should be provided the Veteran, consistent with Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019) (en banc). All efforts to obtain such records should be documented in the claims folder. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals L. HOWELL Veterans Law Judge Board of Veterans' Appeals A. TBD To Be Determined Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.