Citation Nr: 0003578 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 91-48 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE The veteran's dissatisfaction with the initial rating assigned following a grant of service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The veteran, his wife and son ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to May 1975. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating action of the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection and assigned a 10 percent disability evaluation for PTSD, effective from July 12, 1988. The Board remanded the case in May 1995 and June 1997 for additional development. By a January 1999 rating action, the RO increased the rating for the service-connected PTSD to the current level of 50 percent, effective from July 12, 1988. As the appeal regarding the evaluation of the service- connected PTSD involves an original claim, the Board has framed the issue as shown on the title page. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that in the June 1997 remand, the RO was instructed to adjudicate the claims of service connection for schizophrenia and drug/alcohol abuse, providing the veteran notice of these decisions and his appellate rights. Although it appears that the RO adjudicated those claims in a February 1997 rating decision, there is no indication that the veteran was ever provided notice of such a determination or of his appellate rights. As such, those issues are referred to the RO for appropriate action. REMAND The veteran contends that his service-connected PTSD is more severe than the current rating, assigned following the initial grant of service connection in the rating action on appeal, indicates. The United States Court of Appeals for Veterans Claims (hereinafter, the Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Inasmuch as the veteran has submitted a well-grounded claim, VA is obligated to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court has made a distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection, and a claim for an increased rating of a service-connected condition. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-"staged" ratings. See Fenderson, supra. Subsequent to the most recent Board remand, the veteran was afforded a psychiatric examination for VA rating purposes and additional outpatient treatment records were obtained. Upon review of that evidence, the RO increased the rating for the service-connected PTSD to 50 percent, effective from July 12, 1988, the effective date of the grant of service connection. The Court has also held that when the Board addresses in its decision a question that has not yet been addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the statement of the case provided the claimant fulfills the regulatory requirements. See 38 C.F.R. § 19.29 (1999). If not, the matter must be remanded to the RO to avoid prejudice to the claimant. Bernard v. Brown, 4 Vet. App. 384 (1993). In this regard, the Board notes that it is considering whether the veteran deserves a higher rating at any point during the pendency of the claim. See Fenderson, supra. In doing so, the Board must determine whether the rating assigned reflects the greatest degree of disability shown by the record consistent with the date of the grant of service connection or whether a remand is necessary to address the concept of "staged" rating. The procedural history of the present case is such that it has been remanded for development of the medical evidence on two separate occasions and it is possible that the Board would find that a "staged" rating is appropriate. The veteran and representative have not yet been afforded an opportunity to present argument and/or evidence on this question. Consequently, the Board will remand the matter to the RO to avoid the possibility of prejudice. 38 C.F.R. § 19.9; Bernard, supra. On remand, the RO should consider a staged rating and explain, with applicable effective date regulations, any change in the evaluation during the appeal period. As noted by the RO in a January 1999 supplemental statement of the case (SSOC), the criteria for evaluating mental disorders were changed, effective November 7, 1996. The Court has held that "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant generally applies." White v. Derwinski, 1 Vet. App. 519, 521 (1991). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). When the RO readjudicates the veteran's claim for increase, it should again consider both sets of rating criteria. Thus, to ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should take appropriate steps to contact the veteran in order to obtain the names and addresses of all medical care providers who treated him for his service-connected PTSD since 1998. After securing the necessary release, the RO should attempt to obtain copies of all records from the identified treatment sources. 2. Following completion of the foregoing, the RO should review the claims folder. Any necessary additional development, including the scheduling of a VA examination should be undertaken. If any development is incomplete, appropriate corrective action is to be taken. 3. Thereafter, the RO should again review the veteran's claim. That review should include considering the assignment of a staged rating for the service- connected PTSD. The assignment of any staged rating should reflect consideration of the effective date regulations and an explanation of the reason for the effective date. In readjudicating the veteran's claim for increase, the RO should also consider both the old and new rating criteria and apply that most favorable to the veteran. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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).