Citation Nr: 0004608 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-23 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD) for the period of January 13, 1995 to November 6, 1996. 2. Entitlement to an evaluation in excess of 50 percent for PTSD for the period of November 7, 1996 to January 13, 1999. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from September 1943 to November 1946. Initially, the Board of Veterans' Appeals (Board) notes that it remanded this matter in November 1998 for due process considerations and additional evidentiary development. As shown more fully below, the Board is required to once again remand this matter in an effort to complete the veteran's application for benefits. The original claim on appeal sought an evaluation in excess of 10 percent for PTSD, which had been assigned by a rating decision in May 1995. An August 1996 rating decision increased the evaluation to 30 percent, and a February 1999 rating decision increased the evaluation to 50 percent, effective from January 1995. Most recently, the veteran's PTSD was assigned a 100 percent schedular rating by a rating decision in June 1999, effective from January 1999. The veteran has continued the appeal as to the period of January 1995 to January 1999. The Board also notes that since the veteran filed a notice of disagreement as to the initial rating assigned for his PTSD in March 1996, the evaluation for this service-connected disability must be evaluated back to the effective date of the original rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board further finds that it is precluded from applying new rating criteria prior to the effective date of the new criteria (the new rating criteria for PTSD now found in 38 C.F.R. § 4.130, Diagnostic Codes 9400 and 9411 (1999) became effective November 7, 1996). Consequently, the Board has separated the issue of entitlement to an earlier effective date for the grant of a 100 percent rating for PTSD into two issues for the purpose of this appeal. REMAND The most recent Department of Veterans Affairs (VA) outpatient records relating to the veteran's PTSD in the claims file are dated in January 1995, and the Board notes that in his notice of disagreement, dated in March 1996, the veteran indicates that he was continuing to go for group therapy at the VA medical center located in Lincoln, Nebraska, where he further indicated that he had been under the care of Dr. M. In addition, in a subsequent letter from the veteran which was received by the regional office (RO) in May 1996, the veteran states that he continued to meet with his group on a weekly basis and with Dr. M. on a monthly basis. Thus, it is clear that there are additional VA treatment records for the relevant time period which have not yet been associated with the claims folder, and the Board can not simply assume that these records are cumulative in nature or are not relevant to the issues on appeal. The Board also recognizes the obligation of the VA in the event of incomplete applications for benefits under 38 U.S.C.A. § 5103 (West 1991), and the obligation to obtain VA medical records that are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611 (1992). Consequently, in order to complete the application for benefits, the Board finds that VA is obligated to obtain any and all VA treatment records that are dated in and after January 1995. Accordingly, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. 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). 2. The RO should conduct a reasonable search for VA outpatient treatment records dated since January 1995 in light of the discussion above. If no records are obtained from this search, a memorandum should be prepared and associated with the claims file documenting all steps taken in an effort to locate the above-referenced records and why those efforts were reasonably calculated to obtain such records. 3. After the completion of any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of entitlement to an evaluation in excess of 50 percent for PTSD for the period of January 13, 1995 to November 6, 1996, based on the "old" rating criteria for this disability in effect prior to November 7, 1996, and the issue of entitlement to an evaluation in excess of 50 percent for PTSD for the period of November 7, 1996 to January 13, 1999, based on the application of the more favorable of the "old" or "new" criteria for rating this disability in effect prior and subsequent to November 7, 1996. 4. Thereafter, the RO should again review the record. If the benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. This claim 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 (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") 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, Veterans' Benefits Administration (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. Richard B. Frank 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).