Citation Nr: 0005885 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 92-06 665 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran and Mr. [redacted] ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active duty from August 1967 to June 1971. This matter originally came before the Board of Veteran's Appeals (Board) on appeal from a September 1990 rating action in which, inter alia, the RO denied an evaluation in excess of 10 percent for an anxiety reaction (later recharacterized as PTSD). The veteran timely appealed that determination to the Board. In September 1992, following appellate review, the Board remanded the issue of an increased rating for PTSD for further development, to include associating outstanding pertinent treatment records with the claims file, and having the veteran undergo contemporaneous psychiatric examination. In January 1996, the rating assigned for PTSD was increased to 30 percent. However, inasmuch as a higher evaluation is available this condition, and the veteran is presumed to seek the maximum available benefit for a disability, the claim remained viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). On subsequent appellate review, in December 1996, the Board rendered final determinations on the other issues on appeal; however, as indicated below, the issue of an increased rating for PTSD was then again remanded in light of recent regulatory revisions affecting the claim. REMAND The veteran contends that his service-connected PTSD is more severe than presently rated and that he should receive a higher rating. Unfortunately, after further review of the claims file, the Board finds that an additional remand of this matter is warranted even though it will, regrettably, further delay a decision on the remaining issue on appeal. In December 1996, the Board remanded the case for additional development of the evidence. The RO was instructed to evaluate the veteran's PTSD claim under the revised rating criteria for psychiatric disorders which became effective November 7, 1996. Pursuant to the remand order, the Board notes that in a January 1997 supplemental statement of the case (SSOC), the RO evaluated the veteran's service-connected PTSD under the rating criteria in effect November 7, 1996. Subsequent to the January 1997 SSOC, the veteran submitted additional VA outpatient treatment records. Accordingly, in a November 1997 SSOC, the RO evaluated the new evidence under the rating criteria for psychiatric disorders in effect prior to and subsequent to November 7, 1996. Subsequent to the November 1997 SSOC, the veteran submitted additional VA outpatient treatment records and received a VA psychiatric examination. The new evidence was addressed in a August 1998 SSOC. However, the Board notes that the RO did not review the latest evidence under both the old and new rating criteria for psychiatric disorders. Instead, the evidence was rated only under the new rating criteria. This is contrary to due process requirements. See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991) (emphasizing that when a law or regulations change during the pendency of a veteran's appeal, the claim should be considered under both the former and revised version, and the version most favorable to the veteran applied, absent contrary intent). Therefore, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following action: 1. The RO should rate the veteran's PTSD based on the evidence submitted subsequent to the November 1997 SSOC in accordance with the versions of the rating criteria for psychiatric disorders in effect prior to November 7, 1996, as well as that in effect as of November 7, 1996. The more favorable result, if any, should be applied. 2. If the benefit sought on appeal is not granted, the veteran and his representative should be furnished an appropriate SSOC, and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the applicable time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 (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, 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. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).