Citation Nr: 21012752 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-16 705 DATE: March 5, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1989 to July 1989, from July 1991 to November 1991, and from January 2004 to April 2005. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2010 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) reopened and granted service connection for PTSD and assigned an initial 30 percent rating, effective March 29, 2010, the date of the petition to reopen the claim was received. In April 2016, the Veteran testified during a Board hearing before a Veterans Law Judge; a transcript of that hearing is of record. In January 2021, the Veteran was informed that the Veterans Law Judge who had conducted his April 2016 Board hearing was no longer employed at the Board. The Veteran was informed that he had a right to an additional hearing before a different Veterans Law Judge and that if he did not respond within 30 days, the Board would assume that he did not want another hearing. As the 30 days to respond has expired and the Veteran has not responded to date, the Board assumes he does not want another hearing and will proceed with the appeal. In the May 2020 remand, the Board directed that the agency of original jurisdiction (AOJ) obtain outstanding treatment records from the Lakewood Vet Center in compliance with the Board’s previous remand and 38 C.F.R. § 3.159. Notably, 2014 to 2019 VA treatment records note that the Veteran continues to receive mental health treatment from the Vet Center. In a May 2020 letter, the AOJ informed the Veteran that completed VA forms 21-4142/4142a must be submitted for VA to obtain records from the Lakewood Vet Center. However, the Board notes that it appears that the May 2020 VA letter was sent to the wrong address, as documents from June 2020 to January 2021 provide an address different from the address listed in the May 2020 VA letter. Thus, as it is unclear whether the Veteran received the May 2020 VA letter, the Board finds the AOJ should sent the Veteran an additional VA Form 21-4142 to obtain records from the Vet Center in Lakewood, New Jersey. The Board is mindful that VA has a duty to attempt to obtain federal records until it is determined that the records do not exist or that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) (2018). As such, on remand, the AOJ should make as many requests as are necessary to obtain the Veteran’s Lakewood Vet Center records, which are clearly relevant to the initial higher rating claim for PTSD currently before the Board. The AOJ may only cease to do so when advised that the requested records do not exist or that the Lakewood Center or another relevant records repository does not have them. See 38 C.F.R. § 3.159(c)(2). If the AOJ concludes that the records do not exist or that further attempts to obtain them would be futile, the AOJ must make a formal finding of unavailability and properly notify the Veteran. See 38 C.F.R. § 3.159(e). The matter is REMANDED for the following action: Send VA Form 21-4142 to the Veteran’s address as listed on the June 30, 2020, Exam Scheduling Request, also listed on the October 30, 2020, VA Form 28-1900 Disabled Veterans Application for Vocational Rehabilitation, and ask the Veteran to complete the form to obtain records from the Vet Center in Lakewood, New Jersey. After authorization is received, undertake any appropriate development, including making as many requests as are necessary, to obtain the Veteran’s records from the Lakewood Vet Center regarding his mental health treatment. All obtained records should be associated with the claims file. If such records are not available, the AOJ must make a formal finding of unavailability, advise the Veteran of the status of such records, and give the Veteran the opportunity to obtain and submit the records on his own. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.