Citation Nr: 23053675 Decision Date: 09/27/23 Archive Date: 09/27/23 DOCKET NO. 10-17 238 DATE: September 27, 2023 REMANDED The issue of entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to January 29, 2008, is remanded. The issue of entitlement to a rating in excess of 70 percent for PTSD from January 29, 2008, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to March 1969. In an August 2022 decision, the Board granted entitlement to an initial rating of 50 percent for PTSD prior to January 29, 2008, a 70 percent rating for PTSD, from January 29, 2008, and a total disability rating based upon individual unemployability (TDIU) from May 8, 2008. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in May 2023, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMPR). In the JMPR, the parties indicated that a remand was necessary "because the Board erred when it failed to provide an adequate statement of reasons or bases." See?The May 2023 JMPR at page 2. In a May 2023 Order, the Court vacated the part of the Board's August 2023 decision, which denied entitlement to an initial rating in excess of 50 percent for PTSD, prior to January 29, 2008, and a rating in excess of 70 percent for PTSD, from January 29, 2008, and remanded the matter for readjudication in light of the JMPR. As noted above, in the above-mentioned August 2022 decision, the Board also denied the Veteran's claim of entitlement to a TDIU prior to May 8, 2008. Based on the request of the parties in the May 2023 JMPR, this issue was dismissed by the Court's May 2023 Order and is no longer in appellate status. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in June 2021. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. §?7107(a)(2); 38 C.F.R. § 20.902(c). 1. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD prior to January 29, 2008. 2. Entitlement to a rating in excess of 70 percent for PTSD from January 29, 2008. The JMPR found that the Board's previous decision provided an inadequate statement of reasons or bases for awarding entitlement to disability evaluations in excess of the currently assigned ratings. The JMPR additionally found that the Board did not adequately address whether the duty to assist was satisfied with regards to VA treatment records and Vet Center records. The parties indicated that "an August 2013 VA mental health administrative note indicates [the Veteran] received treatment from Erma Watt, a psychiatric nurse practitioner, from December 4, 2007, through July 29, 2013." The JMPR also indicated the Veteran "has received mental health treatment at VA Vet Center." The parties noted that only few of those records were associated with the Veteran's claims file. On remand, the Veteran's treatment records should be obtained and associated with the claims file. As a final matter, in the Joint Motion, the parties observed that the duties of a hearing officer are established in 38 C.F.R. § 3.103(c)(2); see also Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010). The parties then agreed that the Board must address the Veteran's hearing testimony in the first instance and determine whether the "Veterans Law Judges satisfied their duties under Bryant." As the case is being remanded for further development, it would be inappropriate to make a finding of fact at this juncture. However, on remand, the Veteran remains free to request an additional hearing if he feels that the prior hearing(s) were inadequate. See Quinn v. Wilkie, 31 Vet. App. 284 (2019) (citing Cook v. Wilkie, 908 F.3d 813, 814-15 (Fed. Cir. 2018)). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from May 2004 to December 2013 at the Veterans' Affairs Community Based Out-Patient Clinic in Meadville, PA. The Board is interested in records of VA mental health treatment from December 2007 to December 2013. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records, including those identified during the May 2023 JMPR, including the records from the Meadville Vet Center. 3. Make two requests for any authorized records from the physicians/facilities identified by the Veteran, unless it is clear after the first request that a second request would be futile. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Oquendo, 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.