Citation Nr: 21025044
Decision Date: 04/27/21	Archive Date: 04/27/21

DOCKET NO. 16-05 552
DATE: April 27, 2021

REMANDED 

Entitlement to an initial rating in excess of 30 percent prior to December 22, 2020 and in excess of 70 percent thereafter is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the Army, during the Vietnam Era, from June 1968 December 1969. For his meritorious service, the Veteran was awarded a Vietnam Service Medal (among other decorations). 

This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  It was previously before the Board in April 2019 when the Veteran’s claim seeking an initial evaluation in excess of 30 percent for PTSD was denied.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a May 2020 joint motion for partial remand (JMPR) by the parties.  The issue was again before the Board in October 2020 when it was remanded to obtain updated VA treatment records and a current VA examination. 

During the pendency of the appeal, the Veteran’s PSTD disability rating was increased to 70 percent effective December 22, 2020, the date of his VA examination evidencing an increase in disability symptoms.  

However, the May 2020 joint motion for partial remand (JMPR) required a retrospective VA examination to consider the Veteran’s medial history, including his private and VA mental health treatment throughout the appeal period, as well as his lay reports of symptomatology in evaluating his disability level.  Because a retrospective VA examination was not requested by the Board or provided by the RO, the Board now finds that there was not substantial compliance with the JMPR.  Thus, remand is required to provide a retrospective VA examination considering the Veteran’s medical history from August 2014 to December 22, 2020.  See Saunders v. Wilkie, 886 F.3d 1356, 1364 (2018).  

Because the Veteran is presumed to be seeking the maximum possible evaluation of 100 percent compensation in all claims for increased rating, the examiner should also consider and opine upon the Veteran’s current PTSD symptoms.  See Ab v. Brown, 6 Vet. Appl 35, 38 (1993).  

 The matter is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to be conducted by an appropriate clinician to determine the current severity of his service-connected PTSD.

The examiner should also provide a retrospective opinion considering the Veteran’s medial history, including his private and VA mental health treatment, and his lay reports of symptomatology from August 2014 to December 22, 2020.

 

 

S.C. Krembs

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Z. Sloley, 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.