Citation Nr: 21076431 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-57 287 DATE: December 23, 2021 REMANDED The issue of entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1970 to January 1972, and in the Navy from April 1972 to March 1973. This appeal to the Board of Veteran's Appeals (Board) arose from an April 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of the hearing is associated with the file. In June 2020, the Board denied a rating higher than 50 percent for the service-connected PTSD and an effective date earlier than September 6, 2011 for the award of service connection for PTSD. The Veteran appealed the June 2020 Board decision to the Court of Appeals for Veterans Claims (CAVC or Court), as it pertained to the denial of the increased rating for PTSD. The Court vacated the decision in part and remanded it back to the Board for further development in March 2021, pursuant to a Joint Motion for Partial Remand (JMPR). The law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7102; 38 C.F.R. § 20.707. In November 2021, the Board sent the Veteran a letter notifying him of the unavailability of the VLJ who presided over the February 2020 hearing. The Veteran was provided the opportunity to decide whether he wanted another hearing before another VLJ. The letter also informed the Veteran that, if he did not respond within 30 days of the date of the letter, the Board would assume that he does not want a hearing and proceed accordingly. See November 2021 BVA Letter. As the Veteran did not respond within the applicable time period, the Board will proceed with adjudication of this appeal. After a thorough review of the Veteran's claims file, the Board finds that additional evidentiary development is necessary prior to the adjudication of his appeal. The March 2021 JMPR notes that, according to the June 2014 VA PTSD examination report, when prompted about relevant educational background and occupational history, the Veteran reported that he was applying for Social Security Administration (SSA) benefits pertaining to his psychiatric disorder. While SSA records are not controlling for VA decisions, they may be 'pertinent' to VA claims. Murzncsak v Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Murzncsak, supra; Lind v. Principi, 3 Vet. App. 493, 494 (1992). Here, the evidence indicates that these SSA records are relevant to the severity of the Veteran's PTSD. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). As these are Federal agency records, on remand, the AOJ should make the necessary efforts to obtain them. Further, at the February 2020 hearing, the Veteran asserted that his PTSD warrants a 100 percent rating. As his last VA examination was conducted in June 2014, the Board finds that, on remand, an examination should be provided to the Veteran to ascertain the current nature and severity of his service-connected PTSD. This matter is, therefore, REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and request copies of any decisions, including applications and supporting medical records, regarding the Veteran. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. Any negative responses must be documented in the claims file. 2. Once all available, relevant records have been received, and associated with the claims file, accord the Veteran an appropriate VA examination to determine the current nature and severity of his PTSD. His claims file should be made available to the examiner for review. In conjunction with the examination. Any testing deemed necessary should be conducted. The examiner should discuss the Veteran's symptoms and note the functional impairment of his service-connected PTSD and how that impairment impacts employability and daily life. The examiner must comment on the severity of the PTSD and report all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he/she should provide a complete explanation as to why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, Associate 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.