Citation Nr: 0003031 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 99-00 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. ATTORNEY FOR THE BOARD William L. Pine, Counsel REMAND The appellant had active service from January 1968 to April 1980, with prior active service. The appellant asserts that his PTSD has become more severe since it was last assigned a disability rating. The assertion is sufficient to well ground a claim for an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). VA has a duty to assist the claimant to develop facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). Although "where an increase in the disability rating is at issue, the present level of the disability is the primary concern. . . . [T]he regulations do not give past medical reports precedence over current findings," Francisco v. Brown, 7 Vet. App. 55, 58 (1994), "[i]t is . . . essential . . . in the evaluation of disability that each disability be viewed in relation to its history." 38 C.F.R. § 4.1 (1999). The appellant reported in his substantive appeal that he has seen Dr. W.S. since October 1992. Although the doctor provided a statement, his actual clinical records were not requested or obtained. The RO should ask the veteran to provide a release for the actual clinical and treatment records from Dr. W.S. Likewise, the appellant informed the August 1998 VA examiner of psychotherapy for several years from D.S. at the Pastoral Center. The RO has not requested those records. The appellant told the June 1998 VA examiner that he had begun VA medical and psychotherapeutic treatment in 1998 at the Columbus clinic. In his substantive appeal he identified the facility as the Tuskegee VA Medical Center (VAMC) at Columbus. The Secretary of Veterans Affairs has constructive notice of such VA records in the adjudication of claims. Bell v. Derwinski, 2 Vet. App. 611 (1992). The RO has obtained records dated from June to December 1998. On remand, it should assure that VA treatment records from January 1999 to the present are associated with the claims file. Additionally, the August 1998 VA examination report appears incomplete, as it contains two copies of one page, and it is not clear how many other pages are missing. The RO should obtain the missing page or pages. Accordingly, the case is REMANDED for the following action: 1. Request the appellant to provide signed authorizations for the release of information from the Pastoral Center for his treatment by D.S., and for his treatment by Dr. W.S. from 1992. Request copies of treatment records and clinical notes, and associate any information obtained with the claims folder. If any request for treatment records is not successful, notify the veteran so that he may obtain and present the records himself, in keeping with his ultimate responsibility to present evidence in support of his claim. 38 C.F.R. § 3.159(c) (1999). 2. Obtain psychiatric and psychotherapeutic treatment records from January 1999 to the present from Tuskegee VAMC, including from the Columbus Community Based Clinic. Also obtain a complete copy of the August 1998 VA examination report. Associate any information obtained with the claims folder. 3. Thereafter, personnel of the originating agency shall readjudicate the appellant's claim. If a complete grant of benefits does not result, provide the appellant an appropriate supplemental statement of the case and allow an appropriate period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no further action until he is further informed. The purpose of this REMAND is to obtain additional information and to afford due process. No inference should be drawn regarding the final disposition of the claim because of this action. 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. J. SHERMAN ROBERTS 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).