Citation Nr: 0001874 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-29 388A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an effective date earlier than January 5, 1993, for a 100 percent schedular rating for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from June 1968 to January 1970. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a notice of disagreement in writing received within one year of the decision being appealed and, after a statement of the case has been furnished, a substantive appeal received within 60 days of the issuance of the statement of the case or within the remainder of the one-year period following notification of the decision being appealed. The present case arises from an April 1997 rating action in which the veteran was granted a 100 percent schedular rating for PTSD, effective from January 1993. The veteran expressed his disagreement with the effective date assigned for that evaluation in September 1997, and a statement of the case was issued later that month. In October 1997, the veteran perfected his appeal in this regard upon receipt at the RO of a VA Form 9 (Appeal to Board of Veterans' Appeals). Thereafter, a hearing at which the veteran and his wife testified was conducted at the RO in August 1998, by the undersigned, and the case was forwarded to the Board in Washington, DC. In December 1998, the Board remanded the matter to the RO for additional development, and, in May and July 1999, supplemental statements of the case were issued. Subsequently, the case was returned to the Board in Washington. REMAND In the Board's 1998 Remand, it was noted that the veteran contended that PTSD treatment records prior to 1993, when he was awarded a 100 percent schedular rating for that disability, and after the Board's 1991 decision that granted an increased 70 percent rating for PTSD, could be construed as an informal claim for an increased rating for that disability. As such, so it was argued, those records could provide a basis upon which to establish an effective date for a 100 percent rating for PTSD, earlier than that which is currently assigned. In view of the veteran's testimony in that regard, the Board requested that an attempt be made to obtain copies of records of the veteran's psychiatric treatment at the VA Medical Center in Boston, MA (or any of its associated outpatient clinics) between May 1991 and January 1993. In its effort to comply with this request, however, the RO attempted to obtain records of the veteran's treatment during this period at a VA medical facility in Connecticut, rather than contacting any facility in the Boston area. Not surprisingly, the RO was advised, by personnel at the Connecticut facility, that there were no in-patient or out-patient records relating to the veteran at that facility for the pertinent time period. It appears that the veteran lived in the Boston area during the time period in question; moreover, after the Board's 1998 Remand, the veteran submitted non-VA records dated in 1992, showing that he had been transferred, at that time, to the Boston VA Medical Center (VAMC) from a private facility, following what was considered to be either a seizure or an event related to PTSD. It is therefore apparent that relevant records from the Boston VAMC may be available. In order to ensure that we render a decision based upon a complete record, it will be necessary to return this case to the RO for another attempt to obtain those records from the Boston area. See Stegall v. West, 11 Vet.App. 268 (1998), wherein the U.S. Court of Appeals for Veterans Claims determined that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders, and imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand. The Court held that "where, as here, the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. at 217. In addition to the foregoing, the Board observed, in 1998, that the claims file at that time also contained statements from the veteran, dated in July 1991, which could be construed as a claim for an increased rating for his PTSD, and could potentially establish a relevant date of claim earlier than the January 1993 date of claim considered and applied by the RO. The Board also noted that it appeared that the RO actually considered the veteran's July 1991 statements as a claim for increase, but denied that claim in a February 1992 rating action. Thereafter, it was observed that a March 1992 statement from the veteran, in which he made reference to that February 1992 decision, could be construed as a notice of disagreement with that decision, but that no further action on that matter was taken until the veteran's communication in January 1993. Under those circumstances, the Board noted it could be asserted that the July 1991 claim remained open until the rating was increased to 100 percent, and that such an open claim, together with evidence reflecting the impairment contemplated by a 100 percent schedular rating, could result in the assignment of an earlier effective date for that 100 percent rating. In reviewing the claims file as it is currently constituted, we are unable to locate the February 1992 rating action referenced in our 1998 Remand. We do note, however, that a VA Form 21-8947 (Compensation and Pension Award), dated in February 1992, is attached to the inside left flap of Volume I of the claims file. This form indicates that some adjudicative action was taken at that time, and there is reference on this form to a July 1991 claim. That notwithstanding, it does not appear that the RO considered the significance of its 1992 actions, and the veteran's response to them, in the context of the veteran's current appeal. Some consideration by the RO, as to whether there was a claim pending since 1991 for an increased rating for PTSD, would be useful before the Board enters its final determination on the question currently before it. Although the delay occasioned by this Remand is regrettable, for the reasons described above, this case is returned to the RO for the following action: 1. The RO should attempt to obtain copies of records of the veteran's psychiatric treatment at the VA Medical Center in Boston, MA, or any of its associated outpatient clinics, between May 1991 and January 1993. 2. Upon completion of the foregoing development, the RO should review the evidence of record (including the communications received from the veteran in July 1991, September 1991, and March 1992, in the context of any adjudicative action taken at the RO in February 1992), and enter its determination as to whether an effective date earlier than January 5, 1993, for the 100 percent schedular rating for PTSD is warranted. If that decision is favorable to the veteran, he should be asked whether that satisfies his appeal. If he replies in the negative or not at all, or if the decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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. ANDREW J. MULLEN 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).