Citation Nr: 25005779 Decision Date: 04/28/25 Archive Date: 04/28/25 DOCKET NO. 19-32 365 DATE: April 28, 2025 REMANDED A disability rating in excess of 50 percent prior to November 2, 2021, for the service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service from December 1970 to August 1973, and from February 1991 to March 1991. This matter was previously before the Board of Veterans' Appeals (Board) on appeal of a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the denial of a rating in excess of 50 percent for PTSD. In November 2021, while the claim was in appellate status at the Board, the RO issued a rating decision that increased the Veteran's PTSD rating from 50 percent to 100 percent, effective November 2, 2021. As the 100 percent increased rating does not cover the entirety of the appellate period, the issue of a rating in excess of 50 percent prior to November 2, 2021, for PTSD, remained before the Board. A July 2023 Board decision denied the Veteran a rating in excess of 50 percent prior to November 2, 2021, for PTSD. The Veteran appealed the July 2023 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2024 Order, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's July 2023 decision. The Court then remanded the appeal to the Board for readjudication consistent with the JMR. This appeal is advanced on the docket pursuant to 38 C.F.R. § 20.902 (d). A disability rating in excess of 50 percent prior to November 2, 2021, for the service-connected PTSD is remanded. Pursuant to the December 2024 JMR, the Board finds that a remand is necessary for the agency of original jurisdiction (AOJ) to issue the Veteran a supplemental statement of the case (SSOC). By way of background, the AOJ issued an August 2019 Statement of the Case (SOC), which continued a 50 percent rating for PTSD. In October 2019, the Veteran submitted a VA Form 9 (substantive appeal), seeking a higher rating for PTSD. This appeal was certified to the Board on November 5, 2019. Pursuant to 38 C.F.R. § 19.31 (b)(1), in pertinent part, an SSOC will be issued if: "The agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case, or the most recent Supplemental Statement of the Case, has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board." Here, as previously stated, this appeal was certified to the Board in November 2019. On November 2, 2021, the Veteran was afforded another VA examination for PTSD. As noted herein, in November 2021, while this claim was in appellate status at the Board, the AOJ issued a rating decision that increased the Veteran's PTSD rating from 50 percent to 100 percent, effective November 2, 2021, after reviewing the results of the Veteran's November 2, 2021, VA examination for PTSD. As the 100 percent increased rating does not cover the entirety of the appellate period, the issue of a rating in excess of 50 percent prior to November 2, 2021, for PTSD, was before the Board. The Board reiterates that the SOC for this matter was issued in August 2019, and the appeal was certified to the Board in November 2019, prior to the Veteran's November 2, 2021, VA examination for PTSD. See August 2019 SOC; November 2019 VA Form 8; November 2021 VA PTSD Examination; see also 38 C.F.R. § 19.31 (b)(1). The November 2, 2021, VA examination was reviewed by the AOJ and addressed in a November 2021 rating decision. Additionally, it was determined in the July 2023 Board decision that symptoms reflected by the 100 percent rating criteria for PTSD were not shown until the November 2, 2021, VA examination. Nonetheless, the JMR mandates that it is necessary to remand this issue for the issuance of an SSOC, as the November 2021 VA examination for PTSD was added to the record after the August 2019 SOC was issued. Thus, this matter is being remanded for the AOJ to issue an SSOC which addresses the additional pertinent evidence since the August 2019 SOC, to include the November 2021 VA examination for PTSD. See 38 C.F.R. §§ 19.31, 19.37, 20.1305. Pursuant to the JMR, as the Veteran has not waived issuance of an SSOC, not issuing one constitutes a due process violation. Accordingly, the matter must be remanded for corrective action. See Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The matter is REMANDED for the following action: (Continued on the next page) ? 1. Review the record (to include all additional evidence received since the August 2019 SOC) and arrange for any further development necessary for the matter on appeal. 2. After undertaking any additional development deemed necessary, readjudicate the issue on appeal considering the expanded record. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers 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.