Citation Nr: 0002068 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-10 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation for mixed anxiety, depressive state, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from September 1943 to February 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 1998 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). The veteran filed a notice of disagreement with that decision in March 1998. In May 1998, the RO provided the veteran with a statement of the case. In June 1998, the veteran filed his substantive appeal. The veteran's 30 percent evaluation for his service-connected mixed anxiety, depressive state has been in effect since 1975 and is protected under 38 U.S.C.A. § 110 (West 1991). REMAND The Board finds that the veteran's claim for an increased rating for his service-connected mild anxiety, depressive state is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The assertion of the veteran that his mental disorder has worsened is sufficient to state a plausible, well-grounded claim. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The claims file contains records of outpatient treatment received by the veteran at the VA Medical Center (VAMC) in Hampton, Virginia from October 1996 to October 1997. These records indicated that the veteran was treated for a mental disorder by a specific VA physician several times during that period. However, a treatment note dated October 22, 1997 indicated the records of this physician were not available. VA treatment records have been held to be in the constructive possession of VA and therefore constructively included within the record of a claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, such records must be sought, obtained, and reviewed by the agency of original jurisdiction before it decides a claim to which they relate. No records of treatment of the veteran by the physician in concern have been incorporated into the claims file. The January 1998 rating decision makes reference to no such records. When, as here, the claim is for an increased rating of disability alleged to have become more severe, the recent level of the disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, records of treatment of the veteran by this physician since October 1996 are pertinent to the claim. During the course of the present appeal, the veteran has raised the issue of entitlement to service connection for post-traumatic stress disorder (PTSD). This matter is inextricably intertwined with the increased rating issue on appeal and must be considered by the RO. In view of the foregoing, the case is REMANDED to the RO for the following action: 1. The RO should appropriately develop the veteran's claim for service connection for PTSD. 2. The RO should obtain copies of all VA records of treatment of the veteran for any mental condition since October 1996 that are not already in the claims file. Once obtained, all records must be associated with the claims file. Efforts to obtain these records should be documented in the claims file and if the records prove unavailable, such efforts should be specifically noted. 3. After the development requested above has been completed, the RO should schedule the veteran for a VA psychiatric examination to determine the severity of his service-connected mixed anxiety, depressive state. All indicated tests and studies should be performed. The diagnoses should include all disorders currently present and, on Axis V, a score on the Global Assessment of Functioning (GAF) Scale, along with an explanation of the importance of the score as it pertains to social and industrial adaptability. The claims folder should be made available to the examiner for use in the study of the veteran's case Due written notice of the time and place of the examination should be given to the veteran, and a copy of the notification should be made a part of the claims folder. 4. Thereafter, the RO should review all of the evidence and evaluate the veteran's claim for an increased rating, as well as his claim for service connection for PTSD. If the determination regarding an increased rating remains unfavorable to the veteran, the RO should furnish him and his representative with a supplemental statement of the case, in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. § 19.31. The veteran and his representative should then be given an opportunity to respond. Regarding the decision on the claim for service connection for PTSD, the RO should provide proper notice thereof to the veteran, along with his appellate rights. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. BARBARA B. COPELAND 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).