Citation Nr: 21012755
Decision Date: 03/05/21	Archive Date: 03/05/21

DOCKET NO. 15-45 368
DATE: March 5, 2021

REMANDED

Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served in the United States Army on active duty from September 1990 to March 1991.

The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In March 2019, the Board denied the Veteran’s claim for an increased initial rating for his service-connected PTSD.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2020, the Court granted a Joint Motion for Partial Remand (JMPR).  The Court found that VA failed to satisfy its duty to assist the Veteran in obtaining relevant psychiatric treatment records.  Pursuant to the JMPR, the Court vacated and remanded the matter to the Board.

Subsequently, the Board remanded the matter in November 2020 to assist the Veteran to obtain prison therapy records identified in the record.

Although the Board regrets further delay, another remand is necessary to provide the Veteran with every possible consideration in accordance with the Court’s Order.  Further development is necessary prior to appellate review for VA to make reasonable efforts to obtain the Veteran’s prison treatment records.  38 C.F.R. § 3.159(c)(1).

Entitlement to an initial disability rating in excess of 50 percent for PTSD is remanded.

Remand is required to obtain state prison treatment records relevant to the Veteran’s service-connected PTSD.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1).  The Court noted in the March 2020 JMPR that reasonable efforts must include at least one follow-up request, if the records are not received in the initial attempt for records.

The record contains the November 2020 Subsequent Development Letter marking the RO’s attempt to obtain the Veteran’s authorization to request the Veteran’s prison therapy records.  However, the RO received no response from the Veteran after this attempt to obtain records.  Notably, the record also contains returned mail addressed to the Veteran’s representative beginning in January 2021, to include the Supplemental Statement of the Case and the letter notifying the Veteran that his claim was returned to the Board.  There is some uncertainty whether the Veteran or his representative received notice of the RO’s attempt to obtain the Veteran’s treatment records. 

Resolving all reasonable doubt in favor of the Veteran, remand is necessary to satisfy VA’s duty to assist the Veteran in obtaining the prison therapy reports identified in the record. 

The matters are REMANDED for the following action:

1. Please re-send VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), to the Veteran and his representative.  Make reasonable efforts to assist the Veteran in obtaining all the Veteran’s relevant mental health records from Snake River Correctional Institute.  

 

 

JENNIFER HWA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A.V. Bona, 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.