Citation Nr: 21013613 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-23 175 DATE: March 10, 2021 REMANDED Entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to April 30, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to May 1992. This matter comes to the Board of Veterans’ Appeals (Board) from an April 2017 rating decision issued by the Department of Veteran’s Affairs (VA) Regional Office (RO). The Board denied this appealed issue in an October 2019 decision; however, the Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (CAVC). In a September 2020, a Joint for Motion for Partial Remand (JMR) was granted which vacated that part of the October 2019 Board decision that denied entitlement to rating in excess of 50 percent prior to April 30, 2019, for PTSD and remanded the matter for further appellate consideration. The Veteran’s appealed issue has been returned to the Board. 1. Entitlement to a disability rating in excess of 50 percent for PTSD prior to April 30, 2019, is remanded. The Veteran's claim for an increased rating was received January 20, 2017, and thus, the appeal period for consideration for the Board is from January 20, 2016, to April 30, 2016, which include the one-year “look back period if the evidence shows worsening during that time frame. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Review of the record reflects that the Veteran reported to VA medical professionals at the Atlanta VA Medical Center (VAMC) that he received extensive treatment for his service-connected PTSD at the Marietta Vet Center since being referred there in late-2014. The Veteran’s VA treatment records include allusions to continued psychiatric treatment at the Marietta Vet Center throughout the appeal period for consideration; however, the Agency of Original Jurisdiction has taken no actions to seek and/or obtain these pertinent records that are under VA’s constructive possession. As such, a remand is necessary in order to fulfill VA’s duty to assist the Veteran. The above deficiency in VA’s duty to assist calls into question the adequacy of the March 2017 VA psychiatric examination, as the examiner did not have the benefit of reviewing contemporaneous evidence pertinent to the Veteran’s psychiatric symptoms and resulting functional impairment stemming therefrom. In such cases, the United States Court of Appeals for s Claims (the Court) has held that retrospective medical assessments are appropriate. Chotta v. Peake, 22 Vet. App. 80 (2008). Accordingly, after the file for review is complete, it should be transferred to a VA psychologist or psychiatrist to provide a retrospective assessment of the Veteran’s service-connected PTSD, to include the severity, duration, and frequency of the Veteran’s psychiatric symptoms and resulting functional impairment. The matters are REMANDED for the following actions: 1. The AOJ must undertake any actions necessary to seek and obtain all treatment records from the Vet Center in Marietta, Georgia, dated from January 20, 2016, to April 30, 2019. All actions in furtherance of this remand directive must be documented in the file. 2. Thereafter, the Veteran’s complete electronic file must be transferred to a VA psychiatrist or psychologist, who is asked to retrospectively assess the Veteran’s service-connected PTSD, to include the severity, duration, and frequency of the Veteran’s psychiatric symptoms and resulting functional impairment, from January 20, 2016, to April 30, 2019. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must readjudicate the issue remaining on appeal. If the benefit is not granted to the fullest extent, the Veteran and his private attorney must be furnished with a copy of the readjudication and be afforded the applicable opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.