Citation Nr: 0005304 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-12 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an original evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from December 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 1995 rating decision of the Hartford, Connecticut Department of Veterans Affairs (VA) Regional Office (RO). The rating decision granted the veteran service connection for PTSD and assigned the condition a 50 percent evaluation. The veteran submitted a notice of disagreement with that rating decision in July 1995. Subsequently in July 1995, the RO provided the veteran with a statement of the case. The veteran filed his substantive appeal in March 1996. This case was previously before the Board and was remanded in December 1998 in order that the veteran could be scheduled for a hearing before a member of the Board at the RO. A hearing was scheduled in May 1999, but the veteran did not report for the hearing. The case has been returned to the Board for appellate review. REMAND The veteran has alleged that his service-connected PTSD is more severe than contemplated by the 50 percent rating assigned. Thus, the veteran's claim of entitlement to a greater original evaluation is well grounded. Bruce v. West, 11 Vet. App. 405 (1999); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); 38 U.S.C.A. § 5107(a). VA therefore has a duty to assist the veteran in obtaining evidence pertinent to his claim. Id; Peters v. Brown, 6 Vet. App. 540 (1994). The veteran's claim was filed on April 4, 1994. The Board notes that although the RO has characterized the claim as one for an increased rating, it is in fact one for a greater original rating. The veteran is contesting the original rating assigned in the May 1995 decision granting service connection for his PTSD rather than seeking an increased rating for that condition. See AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking the maximum benefit allowed by law and regulation for the disability in question, and a claim remains in controversy when less than the maximum benefit has been awarded). The distinction between a claim concerning an original rating of disability following a grant of service connection on that claim and a new claim for an increased rating of a disability is pertinent here. In Fenderson v. West, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) distinguished the procedure to be followed when the issue is entitlement to a greater original evaluation of a disability from the procedure to be followed when the issue is entitlement to an increased evaluation of a disability. The Court observed that in the latter instance, the present level of the disability is of primary concern. Fenderson, 12 Vet. App. at 126, citing Francisco v. Brown, 7 Vet. App. 55 (1994). The Court stated that in contrast, an original evaluation of a disability must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date) See Fenderson, 12 Vet. App. at 126-27. The Court observed that, accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," ratings of the disability based on the facts shown to exist during separate periods of time. Id. It was documented in the claims file that the veteran was treated at the VA Medical Center (VAMC) in Bedford, Massachusetts. It was indicated that the veteran was admitted on June 14, 1994, as a transfer from the VAMC in Newington, Connecticut, and was still an inpatient at Bedford as of July 27, 1994. The documentation in the claims file did not establish the date on which the veteran was discharged from the Bedford, Massachusetts VAMC. Nor did the claims file contain the records of the veteran's treatment there, except for a single page status report. A summary from the Newington VAMC is also not of record. VA treatment records have been held to be in the constructive possession of VA and therefore constructively included in 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. For these reasons, records of the veteran's treatment at the Bedford, Massachusetts VAMC must be incorporated into the claims file. For the same reasons, records of treatment received by the veteran at any other VA facility that have not been associated with the claims also must be obtained. These must include, but are not limited to, records of treatment rendered after the most recent VA examination of the veteran, which took place on June 4, 1997. In addition, the Board finds that the most recent VA examination is now dated. As such the examination is inadequate for evaluation purposes. See 38 C.F.R. §§ 4.2, 4.70 (1999). A current examination is required so that a future determination of the veteran's claim may be based on a record that contains a contemporaneous examination. Caffrey v. Brown 6 Vet. App. 377 (1994). In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should obtain all records of inpatient and/or outpatient treatment received by the veteran at the Bedford, Massachusetts VAMC from April 4, 1993, to the present, to include records of inpatient treatment for which the veteran was admitted on June 14, 1994. Once obtained, such records should be associated with the claims file. 2. The RO should obtain all records of inpatient and/or outpatient treatment received by the veteran at any other VA facility beginning April 4, 1993, to include the discharge summary from the VAMC Newington, Connecticut which resulted in a transfer on June 14, 1994, to the VAMC Bedford, Massachusetts. Once obtained, such records should be associated with the claims file. 3. When the above-requested development has been completed, the RO should schedule the veteran for a VA psychiatric examination to determine the severity of his service-connected PTSD. 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 file 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 letter should be placed in the claims file. 4. Thereafter, the RO should readjudicate the claim of the veteran for a greater original evaluation of his service-connected PTSD. Consideration should be given to the appropriateness of "staged ratings" of the veteran's PTSD. The veteran should be rated under the more favorable of the rating criteria in effect prior to November 7, 1996, and the criteria in effect on and after that date. Also, the RO should consider the possible applicability of 38 C.F.R. § 4.29, concerning ratings for service- connected disabilities requiring treatment or observation at a VA or approved other hospital for a period in excess of 21 days. If the determination of the claim for a greater original evaluation of his service-connected PTSD is 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 a temporary total disability rating under 38 C.F.R. § 4.29, 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).