Citation Nr: 23044037
Decision Date: 08/08/23	Archive Date: 08/08/23

DOCKET NO. 14-35 336A
DATE: August 8, 2023

REMANDED

Entitlement to an initial disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from April 1980 to August 1980 and from December 1990 to April 1991.

The Veteran testified at a videoconference hearing before the undersigned in December 2018. A transcript of the proceeding is of record.

This matter was most recently before the Board in December 2022 where it was remanded for additional development. The Board determined that there were outstanding Jupiter Vet Center records that are pertinent to his PTSD increased rating claim. While the Board regrets further delay, the matter must be remanded as there has not been substantial compliance with the Board's previous December 2022 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions).

In the December 2022 Board remand directives, the Board specifically stated the following: "The AOJ should directly request records from the Jupiter Vet Center and, if the Jupiter Vet Center (a VA affiliated entity) requires an authorization, the claims folder must reflect this fact." In December 2022, the AOJ sent an Initial Federal 3rd Party Letter to the Jupiter Vet Center, requesting the Veteran's records. However, the Jupiter Vet Center did not respond, and the AOJ sent no further requests. There is nothing in the record that states the Jupiter Vet Center requires an authorization form. These are federal records considered to be within constructive custody of VA, and VA has an obligation to obtain such records as they have been deemed relevant to the Veteran's PTSD claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); 38 U.S.C. § 5103A(c). Therefore, a remand is warranted.

Although Vet Centers are part of VA, their records are kept separately from regular VA medical treatment records and must be requested directly from the specific Vet Center facility. Some Vet Center facilities require a medical authorization form signed by the Veteran. If this is the case, the Veteran and his representative is reminded that the Veteran has a duty to assist the AOJ in developing evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

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The matters are REMANDED for the following action:

Obtain the Veteran's records from Jupiter Vet Center and associate them with the claims file following the procedures set forth in 38C.F.R. §3.159(c). The AOJ should directly request records from the Jupiter Vet Center and, if the Jupiter Vet Center (a VA affiliated entity) requires an authorization, the claims folder must reflect this fact. If an authorization is necessary, the AOJ should send the authorization forms to the current known addresses of the Veteran and his representative.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Adeleke, T.

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.