Citation Nr: 21006615 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-50 308 DATE: February 4, 2021 REMANDED Entitlement to an initial disability rating higher than 70 percent for the periods dated prior to March 21, 2017, and from November 3, 2020, and to a disability rating higher than 30 percent for the period dating from March 21, 2017, to November 2, 2015, for service-connected posttraumatic stress disorder 14(PTSD) (previously rated as generalized anxiety disorder (GAD)), is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1965 to May 1967, including service in the Republic of Vietnam. This appeal before the Board of Veterans’ Appeals (Board) arose from a March 2017 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) granted service-connected for GAD, and assigned an initial 70 percent staged disability rating, effective December 30, 2015, through March 20, 2017, and a 30 percent rating from March 21, 2017. During the current appeal, and specifically in January 2019 and August 2020, the Board remanded this increased rating claim to the Agency of Original Jurisdiction (AOJ) for further development. In a November 2020 rating decision, the AOJ recharacterized the Veteran’s service-connected psychiatric disability on appeal as PTSD, and assigned a higher evaluation of 70 percent for the PTSD, effective November 3, 2020. The Board notes that, while the Veteran’s higher rating claim for his service-connected psychiatric disability has previously been framed as involving a rating reduction, the 30 percent rating assigned as of March 21, 2017, following the assignment of the 70 percent rating, was awarded as part of a staged rating during the appeal period for the rating of the disability. Cf. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (if later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found). Thus, the matter of whether a higher rating is warranted during any of the staged periods on appeal is properly before the Board. The Board regrets the delay associated with this remand, especially considering that this matter has been the subject of prior remands. After carefully considering the evidence of record, however, the Board finds that this case must be remanded for further development. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board directed the AOJ in the August 2020 remand to obtain any outstanding VA treatment records pertaining to the Veteran’s mental health. Unfortunately, however, the AOJ did not substantially comply with this directive. Notably, as a result of VA clinical records recently associated with the claims file, the Board has become aware that the Veteran received treatment for his service-connected psychiatric disability at the Vet Center in Flint, Michigan, from at least approximately May 2017 through April 2018. Vet Center records are deemed to be in the constructive possession of VA. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing Bell v. Derwinski, 2 Vet. App. 611 (1992) (Vet Center records are generated by VA agents or employees which are deemed within the Secretary’s control and, thus, are deemed constructively of record). Where no attempt has been made to obtain the Veteran’s Vet Center records, remand is required for corrective action. Accordingly, this matter is REMANDED for the following action: Obtain the Veteran’s Vet Center treatment records, to include specifically records dating from approximately May 2017 through April 2018. If the Vet Center requires an authorization form to obtain records, notify the Veteran of this requirement and provide him an authorization form for him to authorize release of these records. Also, obtain any additional outstanding VA clinical treatment records pertaining to the Veteran’s mental health, to include clinical records dated since June 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 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). The Veteran also is 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 Michael Wilson, 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.