BVA9502950 DOCKET NO. 93-06 677 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than September 9, 1991, for an evaluation of 100 percent for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from January 1968 to January 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1990 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied the veteran's claim for an evaluation in excess of 10 percent for service-connected post-traumatic stress disorder (PTSD). A notice of disagreement was received in August 1990. A statement of the case which included the increased rating issue as well as the issue of service connection for a back injury was issued in August 1990. A substantive appeal was received in September 1990. In a November 1990 rating decision, the RO determined that a 50 percent evaluation was warranted for the veteran's service- connected PTSD. In December 1990, the RO received a memorandum from the veteran's accredited representative in this case with an attached VA Form 21-4138 (Statement in Support of Claim) signed by the veteran in which it was requested that his appeal be withdrawn. In a January 1991 VA letter, the veteran was informed that action had been taken to discontinue his appeal pursuant to his December 1990 request; however, a second VA Form 21-4138 was submitted by the veteran to the RO later in December 1990 in which he indicated that wished to notify the VA that he had been hospitalized at a VA Medical Center since November 1990. Moreover, a third VA Form 21-4138 was submitted in February 1991 in which the veteran specifically requested a temporary total rating for a period of hospitalization from February 22, 1990, to April 6, 1990, and which included an attached VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). The Board has construed this action by and on the behalf of the veteran as a request to reinstate his appeal with respect to the issue of an increased evaluation for service- connected PTSD. See VA Adjudication Procedure Manual, M21-1, Part IV, chap. 8, subchap. IX, para. 8.37 (Oct. 11, 1994). The Board has determined that the record does not contain a similar request for reinstatement of the appeal relating to the issue of service connection for a back injury. In a March 1991 rating decision, the RO denied the veteran's claim for a total rating based on individual unemployability due to service-connected disability, and in a subsequent March 1991 rating decision, the RO determined that the veteran was entitled to a temporary total rating for the period of hospitalization from November 13, 1990, to February 1, 1991, with reinstatement of the 50 percent rating effective from March 1, 1991. In a VA Form 21-4138, received in March 1991, the veteran reiterated his request for a 100 percent disability evaluation for his service- connected post-traumatic stress disorder. In a June 1991 rating decision, the RO proposed to reduce the disability evaluation assigned the veteran's PTSD to 10 percent. In a July 1991 rating decision, the RO effectuated this reduction, effective from November 1, 1991. In a December 1991 decision, a Hearing Officer at the RO determined that the veteran's service-connected PTSD warranted a 100 percent disability evaluation following the termination of a temporary total hospital rating. The RO formally implemented this determination in a December 1991 rating decision, assigning a temporary total evaluation for a period of hospitalization on September 9, 1991, and continuing the 100 percent disability evaluation following his discharge from the hospital, effective from September 9, 1991. In an October 1992 memorandum, the veteran requested an earlier effective date for the assignment of a 100 percent rating for his service-connected post-traumatic stress disorder. In an October 1992 rating decision, the RO denied the claim for an earlier effective date, and in November 1992, the veteran expressed his disagreement with respect to the assignment of the September 9, 1991, effective date. REMAND The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). From a careful review of the evidence in this case, the Board has determined that there is additional development that must be completed by the RO in order to fulfill this statutory duty prior to appellate review of the appellant's claim. Except as provided below, the law provides that increased awards will be effective the date of receipt of claim or the date entitlement arose, whichever is later. The effective date of an award of increased compensation shall be the earliest date it is ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise the date the claim was received. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o) (1993) The Board observes from the record on appeal that there appears to be some confusion regarding the date the veteran filed a claim for increase in this case. The veteran asserts that the date of his claim and hence, the effective date of the total evaluation for his PTSD should be the date that the RO received a VA Form 21-4138 from him requesting that the RO reopen his claim for an increased evaluation for PTSD, or July 26, 1990. However, the Board notes that prior to the date of the receipt of this statement, the RO on May 18, 1990, received VA medical records in the form of a hospital summary reflecting treatment of the veteran, in part, for his service-connected PTSD beginning in February 1990. Following the receipt of these records, the RO rendered a rating decision in July 1990, in which a temporary total hospital rating as well as an increased rating for PTSD were denied. In fact, in a VA letter dated in August 1990, the veteran was informed that the February 1990 VA hospital summary was considered a claim for increase without his formal request, and that a determination had been made to deny the veteran's claim for an increased evaluation and for a temporary total rating. He was provided notice of his appellate and procedural rights at the time, and the record contains evidence of a timely appeal of that decision. Pertinent VA regulations provide that generally a report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a) (1993). Further, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1) (1993). The Board has determined that the VA hospital summary referred to above meets the requirements for the receipt of an informal claim for an increased evaluation for PTSD, and thus, the date of the claim currently under consideration must be February 19, 1990, the date of the hospital admission. Therefore, the Board must determine if there is an earlier effective date within one year prior to that informal claim as of which an increase in disability had occurred. 38 U.S.C.A. § 5110(b)(2) (West 1991). For purposes of the current appeal, the particular emphasis must be placed on the evidence between February 19, 1989, the one-year period prior to the receipt of the claim in this case, and September 9, 1991, the effective date for the 100 percent evaluation awarded by the RO. However, from a careful review of the record, there do not appear to be any VA medical records documenting treatment for PTSD in 1989 despite the fact that records dated in 1988 and in 1990 indicate ongoing medical treatment at VA medical facilities in Birmingham, Alabama, and Tuscaloosa, Alabama, and is unclear whether the veteran did, in fact, receive any medical treatment for his PTSD in 1989. Further, there is some indication in the record that the veteran may have received medical treatment from private sources during that year. Fulfillment of the VA statutory duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Murphy v. Derwinski, 1 Vet.App. 78 (1990); Ferraro v. Derwinski, 1 Vet.App. 326 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). In order to determine whether an increase in the veteran's PTSD was ascertainable from the record as far back as February 19, 1989, the RO should with the veteran's assistance procure any pertinent private or VA records relating to that time period. The Board also notes that the veteran has indicated that he is in receipt of benefits from the Social Security Administration (SSA) and he has asserted that this award was based, in part, on his service-connected psychiatric disorder. From our review of the record on appeal, the pertinent SSA documents pertaining to the award of benefits have not been associated with the record. The U.S. Court of Veterans Appeals in Murincsak v. Derwinski, 2 Vet.App. 363 (1992), stated that the VA's duty to assist specifically includes requesting information from other federal departments or agencies pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Thus, the documents from the SSA pertaining to the veteran's claim of Social Security, including any medical records that Social Security has regarding the veteran, should be considered and associated with the claims file for review. In view of the foregoing, and in order to fairly and fully adjudicate the veteran's claim, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request that he provide information regarding all private and VA medical sources from which he received treatment for his service-connected PTSD in 1989. 2. The RO should contact all private health care providers indicated by the veteran pursuant to paragraph number 1 above, and procure the pertinent records regarding treatment of the veteran for PTSD in 1989. 3. The RO should contact all VA medical facilities indicated by the veteran pursuant to paragraph number 1 above, and including the VA medical facilities in Birmingham, Alabama, and in Tuscaloosa, Alabama, and request copies of pertinent records relating to treatment of the veteran's PTSD in 1989. 4. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 5. The RO should reconsider the veteran's claim of entitlement to an effective date earlier than September 9, 1991, for an evaluation of 100 percent for PTSD, specifically addressing the issue of whether an increase in disability was ascertainable at any time one year prior to February 19, 1990. If the decision remains adverse to the veteran, he should be provided a supplemental statement of the case which contains a summary of additional evidence, the pertinent laws and regulations, and the reasons for the decision. The veteran should be afforded the opportunity to respond thereto. The case should be returned to the Board for further appellate review on the issue currently in appellate status as well as any issue placed in appellate status during the course of this REMAND. The purpose of this REMAND is to afford the appellant due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).