Citation Nr: 0601194 Decision Date: 01/17/06 Archive Date: 01/31/06 DOCKET NO. 03-04 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Associate Counsel INTRODUCTION The veteran had active military service from October 1965 to October 1967 and from January 1970 to January 1988. This appeal to the Board of Veterans' Appeals (BVA or Board) arose from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the veteran's claim for a rating higher than 50 percent for his PTSD. Unfortunately, further development is required before the Board can adjudicate the veteran's claim. So, for the reasons discussed below, his claim is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify him if further action is required on his part. REMAND On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The VCAA potentially applies to all pending claims for VA benefits, and provides that VA shall make reasonable efforts to assist a veteran in obtaining evidence necessary to substantiate his claim. Changes potentially relevant to this particular veteran's appeal include the establishment of specific procedures for advising him and his representative of information required to substantiate his claim, a broader VA obligation to obtain relevant records and advise him of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on the claim. A preliminary review of the claims file does not indicate the veteran was properly advised of the changes brought about by the VCAA regarding his claim for a higher rating for his PTSD. See 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107. The RO failed to explain the type of information and evidence necessary to substantiate this claim. Furthermore, although the RO provided a copy of some of the regulations implementing the VCAA in the January 2003 statement of the case (SOC), the RO failed to provide the veteran with an adequate explanation of the provisions of the VCAA, including notice of his rights and responsibilities under this law and whose ultimate responsibility - his or VA's, it is in obtaining the supporting evidence. And mere notification of the provisions of the VCAA, without a discussion of his rights and responsibilities, VA's responsibilities, and the necessary evidence to be obtained with regard to the specific issue before the Board is insufficient for purposes of compliance with the VCAA. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). As a consequence, the veteran's claim was certified to the Board without him being given appropriate notice of the evidence necessary to substantiate his claim, his rights and responsibilities under the VCAA, and VA's responsibilities under this law. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA will seek to provide and which evidence the claimant is to provide, is remandable error). Thus, a VCAA letter must be issued to correct this procedural due process problem before the Board can decide the case. And the Board, itself, cannot correct this procedural due process deficiency; rather, the RO must. See Disabled American Veterans (DAV) v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, this case is REMANDED to the RO (via the AMC) for the following development and consideration: 1. Send the veteran a VCAA letter. The letter must: (a) inform him about the information and evidence not of record that is necessary to substantiate his claim of entitlement to an increased rating for his PTSD; (b) inform him about the information and evidence that VA will seek to provide; (c) inform him about the information and evidence he is expected to provide; and (d) request or tell him to provide any evidence in his possession pertaining to this claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). See, too, Huston v. Principi, 17 Vet. App. 195 (2003). And the veteran must be given ample opportunity to supply additional information, evidence, and/or argument in response to the VCAA letter and to identify additional evidence for VA to obtain regarding his claim. The RO should then obtain any referenced records and associate them with the other evidence in the claims file. If any request for records is unsuccessful, notify the veteran of this in accordance with the VCAA. 2. Then readjudicate the veteran's claim in light of any additional evidence obtained. If the benefit sought is not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them time to respond before returning the case to the Board for further appellate consideration. The purpose of this remand is to further develop the record, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of him until he is notified. This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2005).