Citation Nr: 23040591
Decision Date: 07/25/23	Archive Date: 07/25/23

DOCKET NO. 17-09 360
DATE: July 25, 2023

REMANDED

Entitlement to a disability rating greater than 20 percent for service-connected lumbar strain is remanded.

Entitlement to a disability rating greater than 70 percent for service-connected posttraumatic stress disorder (PTSD), during the period from May 1, 2015, is remanded.

REASONS FOR REMAND

The Veteran had active service from May 2004 to November 2008.

This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ) dated in February 2016 and December 2016.

The Veteran testified before a Veterans Law Judge (VLJ) of the Board at a May 2020 hearing; a transcript of the hearing is of record.  By a letter dated in January 2021, the Board informed the Veteran that the VLJ who held a hearing in his case was no longer employed by the Board, and he was offered the opportunity to testify at another hearing before the VLJ who will decide his case.  See 38 C.F.R.  His representative subsequently responded and stated that he did not want another Board hearing, and therefore the Board will proceed with adjudication.

In September 2021, the Board remanded these issues, along with a claim for entitlement to a total disability rating based upon individual unemployability (TDIU), for additional development.  In an April 2022 rating decision, the RO granted entitlement to a TDIU, effective February 10, 2015 (the day after his last employment ended).  As such, this decision represents a full grant of the benefits sought on appeal for the TDIU claim.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977).  Accordingly, that issue is no longer on appeal.

Entitlement to a disability rating greater than 20 percent for service-connected lumbar strain is remanded.

Entitlement to a disability rating greater than 70 percent for service-connected PTSD, during the period from May 1, 2015, is remanded.

In its September 2021 remand, the Board noted that at the May 2020 Board hearing, the Veteran's representative indicated that the Veteran had been awarded disability benefits by the Social Security Administration (SSA) in 2017.  Although records were obtained from SSA in December 2015, the more recent determination and supporting records were not on file.  Accordingly, remand was requested to allow VA to request these records.  However, since the September 2021 Board remand, the record does not reflect that these SSA records have been requested or associated with the claims file.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that a Board remand confers a right on a claimant to compliance with the remand order).  Additionally, the Veteran's representative submitted a December 2021 SSA Benefit Verification Letter; yet, supporting records were not associated with the claims file.  Thus, remand is required to request and obtain these records.

The matters are REMANDED for the following actions:

1. Contact the SSA and request all outstanding copies of records pertaining to the Veteran's receipt of disability benefits.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.  If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).

2. Then, readjudicate the claims.

 

 

L. CHU

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Griffith, Shari

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.