Citation Nr: 21009750 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-05 200 DATE: February 23, 2021 REMANDED Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1990 to December 1993. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board, denied the Veteran’s claim of entitlement to an initial disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD). The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, in August 2020, the parties filed a joint motion for partial remand (JMPR). The joint motion would vacate and remand the issue of entitlement to an initial disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD) to the Board for adjudication consistent with the remand instructions. The Court granted the joint motion in August 2020. The case returned to the Board for further appellate review. 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Upon review of the record, the Board has determined that further development is necessary prior to adjudication by the Board in light of the Court's August 2020 Order. In July 2018, the Board remanded this case for further development. Specifically, the Board instructed that VA must attempt to obtain and associate with the claims file documentation of the August 2000 follow-up to the March 2000 forensic psychological evaluation by Dr. G.R.W. at Western Tidewater Mental Health Center. Any records documenting the January 2001 increase in the Veteran’s medication should also be obtained. All procedures set forth in 38 C.F.R. § 3.159(c)(1) as regards to requesting records from other than a Federal department or agency must be followed. In its January 2020 decision, the Board noted that the RO conducted a search for medical records, that VA had made reasonable efforts to locate these records, that in June 2019 VA confirmed that the records had been destroyed, and found that VA’s duty to assist had been satisfied. In the August 2020 JMPR, the parties agreed that the Board failed to address the Veteran’s statement that two nurses informed him that his paper records had been archived on microfiche and “could be retrieved.” The JMPR directed the Board to address this allegation of availability of the pertinent record on microfiche. The record shows that in a September 2018 letter from the Veteran to Western Tidewater Regional Jail (WTRJ), he stated that he was advised by a nurse that his files were copied to microfiche and that they could be retrieved. In September 2018, WTRJ responded to the Veteran that they do not have his records prior to 2012. A June 2019 Report of Contact shows that VA was informed that the records have been destroyed as the retention period is 7 years. The Board finds that there has not been substantial compliance with the July 2018 remand. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271(1998). Although the additional delay is regrettable, the Board finds that a remand is necessary to ensure there is a complete record upon which to decide the Veteran’s claim. The Board notes that the AOJ did not make any additional attempts to obtain or to further inquire about the Veteran’s record been archived on microfiche as he was advised by a nurse. On remand, the RO must obtain the August 2000 follow-up treatment documentation and documentation showing the medication increase in January 2001. VA has a duty to make reasonable efforts to obtain records not in the custody of a Federal department or agency; which generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. See 38C.F.R.§§3.159 (c)(1). As such, these medical records should be identified and obtained prior to adjudicating this claim. The matters are REMANDED for the following action: 1. Attempt to obtain and associate with the claims file documentation of the August 2000 follow-up to the March 2000 forensic psychological evaluation by Dr. G.R.W. at Western Tidewater Mental Health Center. Any records documenting the January 2001 increase in the Veteran’s medication should also be obtained. This includes any records that may be retired or on microfiche/compact disc and associate them with the electronic file. All procedures set forth in 38C.F.R.§3.159(c)(1) as regards to requesting records from other than a Federal department or agency must be followed. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran must then be given an opportunity to respond. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.