Citation Nr: 21027094 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-35 570A DATE: May 4, 2021 REMANDED The claim of entitlement to an initial disability rating in excess of 10 percent prior to August 12, 2015 and in excess of 50 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Marine Corps from October 2000 to October 2004. He received the Combat Action Ribbon (Iraq), among other commendations. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of January 2013 and August 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD at 10 percent and granted an increased evaluation of 50 percent, respectively. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2019. A transcript of that hearing has been prepared and is associated with the evidence of record. As detailed further in section one below, the Board previously remanded this matter in September 2019 and September 2020. Although regrettable, additional remand is required for substantial compliance with the Board's previous remand instructions and to obtain outstanding medical treatment records. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 1. The claim of entitlement to an initial disability rating in excess of 10 percent prior to August 12, 2015 and in excess of 50 percent thereafter for PTSD is remanded. The Veteran contends that he is entitled to an earlier effective date for his 50 percent PTSD rating. See October 2015 Form 9. He asserts, among other things, that his PTSD caused him significant memory loss and caused him to be hospitalized due to panic attacks. See July 2015 Statement in Support of Claim; May 2019 Hearing Transcript; January 2021 Attorney Brief. Procedurally, the Veteran filed his application for service connection for PTSD on August 17, 2012. He was not represented at the time of the filing of his claim. On his application he listed the names and addresses of two treating providers, his private physicians with the initials Dr. R.D.B. and a private neurologist, Dr. O. At the end of November 2012, VA mailed the Veteran a Veteran Claim Assistance Act (VCAA) development letter, in which it requested release forms to obtain records from any private providers. Two weeks later, in December 2012, the Veteran was provided an initial PTSD VA examination. By January 2013, the RO had completed adjudication of the Veteran's service connection claim and assigned a 10 percent disability rating. It does not appear that VA received any completed release forms prior to adjudication of the claim. In December 2013, the Veteran filed a Notice of Disagreement (NOD) with the assigned rating and secured an attorney to represent him in his appeal. During VA's development of the appeal for an increased rating, the Veteran received a Review PTSD examination in August 2015. As noted by the VA examiner at that time (and by the Veteran's attorney in January 2021), the Veteran reported having two "inpatient hospitalizations due to presenting to ER for fear he was having a heart attack," which, the examiner considered to be severe panic attacks. The underlying hospitalization records, however, are not included in the evidence of record, and it does not appear that any requests were made to obtain such records. A separate VA examiner also noted that the Veteran had received an MRI by neurologist, Dr. O., and was prescribed medication for difficulty with concentration and attention. See August 2015 Headaches Disability Benefits Questionnaire. The underlying records from Dr. O. are not of record. In September 2019, the Veteran submitted treatment records from his private provider, Dr. R.D.B. These records referred to the Veteran seeing "many specialists," including his neurologist, Dr. O., and as having received treatment at a VA hospital. In December 2019, the Board remanded the Veteran's claim for a new VA examination and to conduct any additional development deemed necessary. In September 2020, the Board again remanded the claim as the examination had not been conducted before the appeal was returned to the Board. In December 2020 the Veteran underwent a video telehealth VA examination. and an updated medical opinion regarding the severity of the Veteran's PTSD was obtained based on the evidence available at that time. While this examination opinion resulted in an increase in disability rating from 50 to 70 percent from October 21, 2020, no private treatment records were added to the evidence of record for the examiner to review, and it appears that no additional efforts were made by the RO to obtain any such records. According to the December 2020 Supplemental Statement of the Case (SSOC), the RO "conducted a search of the VA Healthcare Network and found no evidence [the Veteran] receive[d] VA treatment." No information was included in the SSOC regarding attempts to obtain private records. As such, additional development is needed to obtain these medical records and to obtain an addendum medical opinion regarding the severity of the Veteran's PTSD throughout the period on appeal from an examiner who has had the opportunity to review any such records. The Veteran is notified that he should coordinate with the RO to provide authorization to release any private medical records relevant to his appeal. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding records relevant to the Veteran's claim. This should include all private and VA treatment records created during the period on appeal (from August 2012 to the present) that are not already associated with the file. Specifically, records should be requested from the Veteran's neurologist, Dr. O., Dr. R.D.B., and efforts should again be made to determine whether the Veteran received emergency treatment from a VA or private hospital. If any requested records are unavailable, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. After the above development has been completed, if additional records have been received, obtain an addendum medical opinion from an appropriate clinician to assess the severity of the Veteran's service-connected PTSD throughout the period on appeal. If a new examination is deemed necessary, one should be provided. After a thorough review of the medical and lay evidence of record, the opining clinician should: (a.) Provide an opinion as to the severity of the Veteran's PTSD between August 17, 2012 and August 12, 2015. (b.) Provide an opinion as to the severity of the Veteran's PTSD from August 12, 2015 to October 21, 2020. The clinician should provide a full description of the Veteran's PTSD, including the severity, frequency, and duration of his disability, and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria during these periods. To the extent possible, the examiner should identify any symptoms of social and occupational impairment due to PTSD alone. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the clinician should explain why this is so and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate SSOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.