11-24 664
11-24 664
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served on active duty Mar 1952–Dec 1953 and is service-connected for PTSD.
- VA initially awarded 10% (effective Aug 13, 2001) and later increased to 30% (Sep 19, 2008); RO issued a 50% rating from Aug 13, 2001 in Sept 2011.
- Claim has been remanded multiple times by the Board (Apr 2012 and Feb 2016) for additional development; the Feb 2016 remand required obtaining Vet Center records from Jacksonville where the Veteran attended group therapy.
- The AOJ requested a VA Form 21-4142 but did not obtain the Vet Center records and failed to notify the Veteran that the records could not be obtained, contrary to the prior remand instructions and VA procedures.
- The Board found the AOJ did not substantially comply with the February 2016 remand (Stegall duty) and remanded again, directing VA to obtain Vet Center records (following M21-1 procedures), document efforts, notify the Veteran if records are unobtainable, and then readjudicate the claims.
- Entitlement to TDIU was held in abeyance as inextricably intertwined with the increased-rating claim for PTSD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to an initial rating >50% for service-connected PTSD | Veteran seeks a rating higher than 50% based on treatment history and symptom evidence | AOJ has not completed development to either confirm or deny higher rating; prior ratings based on available evidence | Remanded for further development (obtain Vet Center records, readjudicate) |
| Whether the Veteran is entitled to TDIU due to service-connected disabilities | Veteran seeks TDIU based on unemployability related to PTSD | AOJ's adjudication of TDIU depends on outcome of PTSD rating and record development | Deferred/remanded as inextricably intertwined with the PTSD rating claim |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand creates a duty of substantial compliance by VA)
- D'Aries v. Peake, 22 Vet. App. 97 (2008) (reinforces VA's duty to comply with remand directives)
- Wood v. Derwinski, 1 Vet. App. 190 (1991) (duty to assist requires claimant cooperation; veterans must provide information they control)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran retains right to submit additional evidence after remand)