Citation Nr: 21028480
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 14-20 585
DATE: May 11, 2021

REMANDED

Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to September 26, 2019 is remanded. 

Entitlement to an initial rating higher than 50 percent for PTSD since September 26, 2019 is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from April 2001 to April 2005.

The Veteran appeals the denial of an initial rating higher than 30 percent for PTSD prior to September 26, 2019 and a rating higher than 50 percent disabling thereafter. 

In July 2020 and December 2020, the Board remanded this claim for further development to include obtaining treatment records. Although this case has been returned to the Board again, the records requested in the prior remand still have not been obtained and associated with the record as requested. 

As noted in the prior remand, the Board directed the AOJ to obtain records from the Portland Vet Center since February 2017, if any. The Board noted that the U.S. Court of Appeals for Veterans Claims (CAVC) has indicated that Vet Center records are essentially VA records. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.) for determining that Vet Center records are generated by VA agents or employees which are deemed within the Secretary's control and, thus, are deemed constructively of record).

In correspondence in December 2020, January 2021 and February 2021, the RO requested that the Veteran complete and return the VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information for the Portland Vet Center records dated since February 2017. The Veteran has yet to submit the authorization. The Board notes, however, that CAVC has indicated that Vet Center records are essentially VA records. In the prior remand, the Board requested that, if claimant authorization is required to obtain Vet Center records, the AOJ should explain for the record why an authorization was needed. Although the AOJ indicated that authorization was needed, they have not explained for the record why such is so as requested in the prior remand.  A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remand directives of December 2020 were not followed, the AOJ is again requested to comply with the Board's remand directives as stated below.

The matters are REMANDED for the following action:

1. Associate with the claims folder any outstanding VA outpatient treatment records.

2. Obtain and associate with the file a written statement from the Portland Vet Center as to why authorization is required to obtain the Veteran's treatment records. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.) for determining that Vet Center records are generated by VA agents or employees which are deemed within the Secretary's control and, thus, are deemed constructively of record). 

3. Thereafter, readjudicate the claims. If the benefits sought on appeal are not granted in full, furnish the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity to respond

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S. Willie

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.