Citation Nr: 1749099	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  14-25 189A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia



THE ISSUES

1.  Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 12, 2012.

2.  Entitlement to an evaluation in excess of 50 percent for PTSD on or after April 12, 2012.


REPRESENTATION

Appellant represented by:	Ryan C. Farrell, Agent



ATTORNEY FOR THE BOARD

K.M. Walker, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from July 2003 to July 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Board remanded the case for further development in November 2015.  The case has since been returned to the Board for appellate review. 

During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) issued an April 2017 rating decision in which the evaluation for PTSD was increased to 50 percent effective from April 12, 2012.  Nevertheless, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993).

This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board previously remanded the case, in pertinent part, to schedule a VA examination.  However, the Veteran failed to report for the scheduled examination.  The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken if a veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination.  38 C.F.R. §§ 3.655(a), (b).  In this case, however, it is unclear whether the Veteran was properly notified, and there is no published guidance establishing the presumption of regularity in such a situation.  See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013).

In this regard, the Board notes that correspondence that was sent to the Veteran has been returned as undeliverable.  However, that correspondence used a street address, whereas the most recent correspondence has been sent to a P.O. Box and has not been returned.  Thus, it appears that some correspondence may have been sent to an older mailing address.  Without a copy of a notice letter notifying the Veteran of the scheduled VA examination, it is unclear as to whether it was sent to the correct mailing address.  Therefore, the Board finds that a remand is necessary in this case.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The AOJ should take appropriate steps to verify the appellant's current mailing address, to include contacting his representative or any other appropriate entity.  (VACOLS and recent letters list a P.O. Box, whereas the previously returned correspondence used a street address).

2.  After the Veteran's address is verified, the AOJ should mail a copy of the April 2017 SSOC and April 2017 rating decision to him.

3.  Thereafter, the AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his PTSD.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate the records with the claims file.

The AOJ should also secure any outstanding VA medical records.

4.  After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected PTSD.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including any treatment records and assertions.

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders.  The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD.

A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability is viewed in relation to its history", copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

5.  The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). 

In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the VBMS file.  It should also be indicated whether any notice that was sent was returned as undeliverable.

6.  After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs.  

7.  When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



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