Citation Nr: 25005071
Decision Date: 04/15/25	Archive Date: 04/15/25

DOCKET NO. 16-56 323
DATE: April 15, 2025

REMANDED

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1967 to August 1973. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran died in May 2017. The appellant is the Veteran's surviving spouse.

The appellant was substituted as claimant by an August 2017 VA Regional Office (RO) decision.

The appealed issue was previously remanded by the Board in December 2018. By a March 2023 decision, the Board denied the appealed claim. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and by an April 2024 Memorandum Decision the Court vacated the Board's decision and remanded the case for action consistent with the Memorandum Decision.

In November 2024, the Board remanded for additional development, and the case now returns to the Board for further review. 

Entitlement to an initial rating in excess of 30 percent for PTSD is remanded.

In November 2024, the Board remanded to obtain Veterans Choice Program (VCP) treatment records, as indicated by a January 2017 record within the VA Compensation and Pension Record Interchange System (CAPRI).  The Veteran reportedly received mental health care services through the VCP from a private provider in Payson, Arizona, between January 2017 and July 2017.  

Following the Board's remand, records from January through May 2017 were obtained from private providers, consisting of medical treatment records including for treatment for the Veteran's metastatic esophageal cancer, as well as some private records of mental health care during that interval.  Thus, it appears that remand development required by the Board was substantially accomplished. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).  

However, in January 2025, the appellant's authorized representative submitted a request for a hearing before the Decision Review Officer (DRO) to address the appealed claim.  That hearing was not accomplished prior to the RO's issuance of a supplemental statement of the case (SSOC) in March 2025.  A report of contact dated in April 2025 informs that an email was received from the appellant confirming a virtual hearing scheduled in June 2025.  Hence, it appears that the opportunity of a DRO hearing was not afforded the appellant prior to issuance of the SSOC and prior to return of the case to the Board.  

In Quinn v. Wilkie, 31 Vet. App. 284 (2019), the Court held that the law provides that an appellant who has already participated in a Board hearing has the right to another such hearing, if requested, after the Board has remanded the appeal to the Agency of Original Jurisdiction (AOJ, here the RO). See also 38 U.S.C. § 7107(b).  Notably, while the Court in Quinn addressed a post-remand request for a Board hearing, the Board does not thereby conclude that the appellant, upon a DRO hearing request, would not be entitled to a DRO hearing in a legacy appeal in the course of Board remand development prior to the VA RO of the case with issuance of an SSOC.  The appellant is entitled to a hearing upon request. 38 C.F.R. § 3.103(d)(1).  

The matters are REMANDED for the following actions:

1. Afford the appellant a hearing before a DRO.

2. Thereafter, readjudicate the claim. 

 

 

L. CHU

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Schechter

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.