Citation Nr: 0006738 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-03 716A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating higher than 10 percent for post- traumatic stress disorder (PTSD), prior to June 4, 1994. 2. Entitlement to a rating higher than 30 percent for PTSD from June 4, 1994. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel Introduction The veteran had active military service from December 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for PTSD and assigned a 10 percent rating for the disorder. It is necessary to clarify procedural matters in this case. A February 1984 rating decision denied service connection for PTSD, and the veteran did not appeal that decision. In August 1989, he sought to reopen the claim. After a January 1990 rating decision did not reopen the claim, he appealed that decision to the Board. In March 1991, the Board remanded the case for additional development. In September 1995, the Board determined that new and material evidence had been submitted to reopen the claim for service connection for PTSD and remanded it for additional development. A June 1997 rating decision granted service connection for PTSD. The veteran disagreed with the initial rating assigned for this condition. Service connection for PTSD was awarded as of August 15, 1989, date of receipt of the veteran's reopened claim. The rating assigned was 10 percent. In 1999 it was increased to 30 percent, effective from June 4, 1994, the date of a VA examination. As the veteran has perfected his appeal from the initial rating assigned, the Board will address whether he was entitled to a disability rating higher than 10 percent prior to June 4, 1994, as well as whether he is entitled to a disability rating higher than 30 percent from June 4, 1994. In December 1999, a hearing was held before the undersigned, who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c). REMAND Because this appeal is from the initial rating assigned to a disability upon awarding service connection, consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally requires notice and a delay in implementation when there is proposed a reduction in evaluation that would result in reduction of compensation benefits being paid. Fenderson, 12 Vet. App. at 126. Since this claim is on appeal from the initial rating assigned from 1989, all evidence from 1989 to the present must be considered in determining the appropriate rating, including in "staged ratings" for the veteran's PTSD. Accordingly, all of the veteran's treatment records from 1989 to the present must be obtained. It is clear from statements the veteran has made that all such records have not been obtained. In particular, the veteran has been receiving outpatient psychiatric treatment at the Westside VA Medical Center (MC) in Chicago and at a Vet Center in Evanston since 1995. None of the records since 1996 have been obtained. VA records are considered part of the record on appeal since they are within VA's constructive possession, and such records must be considered in deciding the veteran's claim. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Moreover, the veteran testified that he is receiving Social Security disability benefits, and it is not known whether the award of benefits was based in any part on his PTSD. If so, it is also necessary that the RO obtain the medical and adjudication records relating to the veteran's Social Security disability benefits. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration (SSA), including decisions by the administrative law judge, and give the evidence appropriate consideration and weight). The Board notes that the veteran received treatment from a private psychiatrist (Dr. Razzouk) between 1983 and 1986 and at the Vet Center at Oak Park in 1983-1984. Since that treatment pre-dated the grant of service connection, those records would be relevant only in that they would provide a more complete picture of his psychiatric history. They could not be used as a basis for assignment of a disability rating, and it is therefore unnecessary that additional attempts be made to obtain those records. The veteran began receiving treatment at VA facilities in 1995. The evidence does not indicate that he received any treatment between 1989 and 1995. Accordingly, this case is REMANDED for the following: 1. Ask the veteran if since 1989 he has received treatment for PTSD from any medical professional or facility other than the VA MCs in Chicago and the Vet Center in Evanston. If so, he should identify the sources so that the RO can obtain his treatment records. If any request for private medical records is unsuccessful, advise the veteran that the actual treatment records are important to his claim, and advise him that it is his responsibility to submit these records. 2. Obtain and associate with the claims file the veteran's complete psychiatric treatment/examination records from the Westside and Hines VA MCs from 1996 to the present. Complete copies of any records from the Vet Center in Evanston from 1995 to the present should also be obtained. 3. Ask the veteran if he was awarded SSA disability benefits due to his PTSD. If so, obtain the adjudication records (and any medical records considered from SSA. 4. Thereafter, readjudicate the veteran's claims for higher ratings for PTSD, with application of all appropriate laws and regulations and consideration of the additional evidence developed upon remand. In readjudicating this case, the RO should: (a) consider the claims under both the old and the revised rating criteria for evaluating mental disorders. See VAOPGCPREC 11-97; Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). (b) review the evidence of record at the time of the June 1997 rating decision that was considered in assigning the original disability rating from 1989 for the veteran's PTSD, then consider all the evidence of record to determine whether the facts show that he was entitled to a higher disability rating for this condition at any period of time since his reopened claim. See Fenderson v. West, 12 Vet. App. 119 (1999). 5. If any benefit sought on appeal remains denied, provide the veteran and his representative an appropriate supplemental statement of the case, and give them an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional evidence. No inference should be drawn from this remand regarding the final disposition of the claims. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. GEORGE R. SENYK Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).