Citation Nr: 22015384
Decision Date: 03/17/22	Archive Date: 03/17/22

DOCKET NO. 17-07 991
DATE: March 17, 2022

REMANDED

Entitlement to an earlier effective date prior to May 7, 2013 for the grant of service connection for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran had active service from September 1965 to September 1967. 

This matter was previously before the Board and was denied in an October 2020 decision.  In a November 2021 Joint Motion for Remand (JMR) by the Court of Appeal for Veterans Claims ("the Court"), the October 2020 decision was vacated and remanded in order to address the question as to whether the Board had jurisdiction to analyze treatment records as new and material evidence without prior Agency of Original Jurisdiction (AOJ) adjudication of the matter.

After a February 2005 rating decision denying service connection for PTSD, VA treatment records were created and the October 2020 Board decision found them to have been in the constructive possession of VA.  The Board determined that those records did not constitute new and material evidence sufficient to toll the finality of the previous February 2005 rating decision.  However, the AOJ was not first given the opportunity to review this evidence and neither the Veteran nor his representative submitted a waiver of his evidence.  While a finding by the Board that the evidence was considered new and material evidence would be a favorable and non-prejudicial finding for the Veteran, thereby rendering AOJ review moot, a finding the evidence does not constitute new and material evidence would be an adverse finding that would indeed prejudice the Veteran.  Therefore, the Board finds a remand is warranted for the AOJ to review whether the VA treatment records submitted within one year of the February 2005 rating decision constitute new and material evidence.

The matters are REMANDED for the following action:

1. The AOJ should adjudicate the question as to whether the treatment records submitted within the one-year period after the February 2005 rating decision denying service connection for PTSD constitute new and material evidence.  

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If so, the AOJ should consider whether the Veteran's PTSD should have been service connected prior to May 7, 2013.

2. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims.  If the benefits sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto.

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Snoparsky

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.