Citation Nr: 0007744 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-17 864A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an evaluation greater than the 30 percent currently in effect for service-connected post-traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Associate Counsel INTRODUCTION The appellant served on active military duty from February 1969 to February 1971. This appeal arises from an April 1998 rating decision of the New Orleans, Louisiana, Regional Office (RO) that awarded service connection for post-traumatic stress disorder (PTSD) and that assigned a 10 percent rating for that disability. The appellant disagreed with the assigned rating, and in January 1999, the RO awarded a 30 percent rating for the service-connected PTSD. The appellant continues to disagree with the assigned rating. FINDINGS OF FACT 1. The appellant sought service connection for PTSD in October 1997. 2. The RO awarded service connection for PTSD in April 1998 and assigned a 10 percent rating, which it increased to a 30 percent rating in January 1999. 3. The appellant is continuing to disagree with the assigned 30 percent rating for PTSD. 4. The appellant states that the severity of his service- connected PTSD has worsened during the pendency of this claim. CONCLUSION OF LAW The claim of entitlement to an evaluation greater than the 30 percent currently in effect for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board of Veterans' Appeals (Board) considers if the appellant's claim is well grounded. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a) (West 1991), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims held that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. "[W]hen a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open." Shipwash v. Brown, 8 Vet. App. 218, 222 (1995). In this case, the appellant filed a claim for service connection for PTSD in October 1997.? The RO awarded service connection in April 1998 and assigned a 10 percent rating for his PTSD. Following the appellant's notice of disagreement, testimony by the appellant at the November 1998 hearing, and further VA examination, the RO awarded a 30 percent rating for his PTSD in January 1999. The appellant continued to disagree with the assigned rating. Because this claim arises from the assignment of a rating in connection with the grant of an original claim for service connection, the appellant's rating claim is well grounded. See Shipwash, 8 Vet. App. at 222. ORDER The claim for an evaluation greater than the 30 percent rating currently in effect for service-connected PTSD is well grounded. To this extent only, the appeal is granted. REMAND It is the opinion of the Board that additional evidentiary development is needed prior to further disposition of this claim. Because the claim for an evaluation greater than the 30 percent currently in effect for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The appellant has indicated that he has been receiving counseling at a VA Veterans Resource Center on a weekly basis since June 1997, and a VA social worker has submitted two letters in support of the appellant's claim (a September 1998 letter and a November 1998 letter). It is not clear whether the Veterans Resource Center or the social worker has maintained any treatment or counseling records for the appellant. However, prior to further disposition of this claim, it is essential that the RO seek to obtain all available, relevant records. Additionally, since the matter is being remanded to the RO for further evidentiary development, the RO should also seek to obtain any additional records of VA medical treatment for the appellant's PTSD from the New Orleans, Louisiana, VA Medical Center or any other facility where the appellant is receiving treatment for his PTSD. The RO last sought to obtain medical records in October 1998, and the most recent medical record is dated in May 1998. Thus, the RO should seek to obtain any more recent VA medical records. Accordingly, to ensure that VA has met its duty to assist the appellant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following: 1. The RO must seek to obtain all relevant, existing records of counseling since June 1997 from the Veterans Resource Center in New Orleans, Louisiana. 2. The RO must seek to obtain any additional, recent medical records of VA medical treatment for the appellant's PTSD from the New Orleans, Louisiana, VA Medical Center since May 1998. Upon remand, the appellant will be free to submit additional evidence. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1999); Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129 (1992). The Board notes that a remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268 (1998). Following completion of the above development, the RO should then review the entire evidentiary record in order to determine if an evaluation greater than the 30 percent currently in effect for the appellant's service-connected PTSD may be granted. If the decision remains adverse to the appellant, he and his representative should be furnished with a supplemental statement of the case. The case should thereafter be returned to the Board for further review, as appropriate. The claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board 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). JEFF MARTIN Member, Board of Veterans' Appeals ? The Board notes that the appellant's claim is subject to the revised regulatory criteria governing evaluations of mental disorders, which became effective on November 7, 1996. VA revised the pertinent regulatory criteria, effective November 1996. See 61 Fed. Reg. 52,695 (1996) (revisions effective November 7, 1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999).