Citation Nr: 0215592 Decision Date: 11/04/02 Archive Date: 11/14/02 DOCKET NO. 98-13 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased disability rating for post- traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to an increased disability rating for a shell fragment wound, right thigh, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) by reason of service-connected disabilities. 4. Whether a claim received in July 1969 for service connection for a back disability remains open. WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from March 1967 to January 1969. This case initially came before the Board of Veterans' Appeals (Board) by means of a September 1997 rating decision rendered by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein increased disability evaluations were denied for PTSD and a shell fragment wound, right thigh, and wherein entitlement to TDIU was denied. The veteran also appealed a May 1998 letter from the RO wherein it was determined that a prior unappealed denial of service connection for a back disability is final. In February 2000, the Board issued a decision finding that a July 1969 rating action which denied service connection for a back disorder was final. The issues of entitlement to increased ratings for PTSD and a shell fragment wound of the right thigh and entitlement to TDIU benefits were remanded to the RO for further development. The veteran appealed the Board's finding that the July 1969 rating action was final to the Court of Appeals for Veterans Claims (Court). In March 2002, the Court vacated this decision and remanded the issue to the Board for readjudication. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate his claim. 2. The veteran's chronic PTSD is manifested by profound impairment of social and vocational adaptability, extremely limited interpersonal relationships, and an inability to function in an employment setting. 3. Service connection for developmental abnormalities of the lumbar spine was denied by means of a July 1969 rating action. 4. An August 1969 Disability Award worksheet, notes that a VA Control Document and Award Form and Original Disability Compensation Letter were completed in August 1969. The Control Document and Award Form is associated with the claims folder. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating of 100 percent for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R. Part 4, §§ 4.16(c), 4.130, Diagnostic Code 9411 (2001). 2. The issue of a total disability rating based on individual unemployability (TDIU) is moot. Vettese v. Brown, 7 Vet App. 31 (1994); Holland v. Brown, 6 Vet App. 443 (1994). 3. A timely notice of disagreement with the July 1969 rating action has not been received. 38 U.S.C.A. § 7105 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.103, 19.309(a), 19.310 (1969) and 20.201, 20.302 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board must consider the impact of the Veterans Claims Assistance Act of 2000 (VCAA) on the appellant's claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5126 (West Supp. 2001); McQueen v. Principi, 14 Vet. App. 300 (2001) (per curiam). The law provides that VA has a duty to assist veterans and other claimants in developing their claims for VA benefits. The duty to assist requires VA to make "reasonable efforts to obtain relevant records (including private records)." 38 U.S.C.A. § 5103A. The RO has obtained all pertinent private and VA medical records referenced by the veteran. The evidence does not show that any pertinent VA or private medical records exist that are not presently associated with the claims folder and which are obtainable. The Board finds that VA's duty to assist the claimant in obtaining pertinent medical records is satisfied. 38 U.S.C.A. § 5103(a); 66 Fed. Reg. 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(c)). The VCAA also provides that upon receipt of an application for VA benefits, VA shall notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, not previously provided that is necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(b)). VA must inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was informed of the information necessary to substantiate his claim by means of a statement of the case and supplemental statement of the case issued during the course of this appeal. Accordingly, the Board finds that the duty to inform the veteran of required evidence to substantiate his claim has been satisfied. 38 U.S.C.A. § 5103(a). The duty to assist also requires medical examination when such examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(c)(4)). In the present case, the veteran has been afforded examinations for compensation and pension purposes. The RO has completed all development of this claim that is possible without further input by the veteran. The veteran has been duly notified of what is needed to establish entitlement to the benefits sought, what the VA has done and/or was unable to accomplish, and what evidence/information he can obtain/submit himself. Accordingly, the Board finds that the requirements set forth in the VCAA with regard to notice and development of the veteran's claim, have been satisfied, and that returning the case to the RO to consider the requirements of VCAA would serve no useful purpose, but would needlessly delay appellate review. Increased Rating for PTSD The appellant claims that his post-traumatic stress disorder (PTSD) has worsened and warrants an increased disability rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in the Schedule for Rating for Rating Disabilities represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2001). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Service connection for PTSD was granted via a rating decision of January 1991. A disability evaluation of 30 percent was assigned effective from September 18, 1990. The veteran appealed this initial rating to the Board. In January 1996, the Board denied a rating in excess of 30 percent for the veteran's service connected PTSD. In June 1997, the veteran filed a claim for an increased rating for his service-connected PTSD. The RO issued rating actions in September 1997 and February 1998 that continued the 30 percent disability rating. The veteran filed a timely notice of disagreement with these decisions. Following a hearing at the RO, a hearing officer decision in August 1998 established a 50 percent disability rating for this disorder, effective from June 20, 1997. As this is not a full grant of benefits sought on appeal, the claim for an increased rating remains open. The veteran contends that his PTSD is currently more severe than currently evaluated. After a review of the evidence, the Board finds that the criteria for an increased rating to 100 percent are met. 38 C.F.R. § 4.130. The severity of PTSD, is currently ascertained, for VA rating purposes, by application of the criteria set forth in Diagnostic Code 9411 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.130 (2001). Under this criteria, a 50 percent rating would be appropriate if the disorder is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Treatment records from the Little Rock, VA Medical Center (VAMC) dated from October 1990 to January 2002 show that the veteran obtained treatment for a variety of disabilities to include PTSD. From July to August 1999, the veteran was admitted to a four week PTSD treatment program. His most problematic symptoms were depressed mood with irritability and anger dyscontrol, isolation, intrusive thoughts, nightmares, and avoidance of reminders. It was reported that the veteran's PTSD symptoms had resulted in lost jobs. At the time of discharge from the hospital his global assessment of functioning (GAF) score was 45. During VA group therapy in September 1999, the veteran reported that his needs were not being met by VA. He stated that he had a need to "grab someone by the neck and get their attention." A subsequent treatment record noted that his affect was restricted, but he had decent range with no psychosis, and no current suicidal ideation. In June 2000, the veteran was afforded a VA psychological examination. At that time he was taking Zolpidem, Sertraline, and Mirtazapine. He told the examiner that "most days, I stay kind of low. I ain't found them happy pills yet." He felt that he could not get anything done and reported panic attacks virtually every morning. These attacks involved anxiety, shortness of breath, sweating, and a felling like morning sickness. It seemed like he had nightmares every night that involved "a guilty conscience about shit I've done." He reported that he ate some Viet Cong hearts in Vietnam and that in his nightmares the Viet Cong came back to take out his heart. He also reported numerous intrusive thoughts of the war, which were often triggered by the sound of cropdusters overhead. He was easily startled by noises such as machinery. He was uncomfortable in crowds and stated that "every time I get around people, I get in trouble." He did not go to restaurants and would only go to a store if he could get in and out quickly. He had been married to his current wife, his third wife, for 18 years. However, he reported that they were not very close. He stated that "I can't talk to her. We don't see much of each other." He had last worked one year prior to the examination; however, according to the veteran, his nerves made it impossible for him to work. While he would visit with anyone that came around, this really did not happen very often. He denied any alcohol use for the last three years, but he missed the alcohol. He denied drug use. The examining psychologist described the veteran as rather anxious. He made little eye contact during the examination and became increasingly agitated as the examination progressed. His speech was within normal limits with regard to rate and rhythm. His predominant mood was one of anxiety and his affect was appropriate to content. His thought processes and associations were logical and tight with no loosening of associations or confusion. No gross impairment in memory was observed and the veteran was oriented in all spheres. Hallucinations were not complained of and no delusional material was noted during the examination. While the veteran reported suicidal and homicidal ideation, he denied any intent. An impression of PTSD was rendered and the examiner assigned a GAF score of 42. The veteran was afforded a private psychological examination in April 2000. According to the examination report, his general appearance was good and his hygiene habits and self- care were well within normal limits. He walked into the office without assistance and initially related fairly to the examiner. There were no observations of any unusual behavior until after the interview started. He complained of being worn out and reported bad nerves and arthritis. When discussing his history, the veteran was "strangely quiet." The examiner noted that at that point most people are anxious to discuss their problems. When asked about his symptoms, the veteran tried to talk about them, but he "became extremely upset and started to talk in a loud voice, but didn't say anything." According to the veteran, his medications caused him to be drowsy all the time. When asked how his symptoms kept him from working, he reported that he got nervous to the point were he could not do anything. The examiner noted that at this point the veteran became extremely threatening and pounded on the desk alleging that the examiner was "just trying to make a damned monkey" out of him. When told that he need to get himself under control, the veteran apologized several times. The examiner noted that the veteran's attitude was uncooperative and very evasive. He never made eye contact during the interview. He was hostile, demanding, shouting, and threatening at the beginning of the interview. He demonstrated long pauses before responding to questions and appeared to be offended by some of the questioning. He gave very little information that could be useful in arriving at an Axis I diagnosis. He was indifferent, disinterested, and reticent. He was passive aggressive, flippant, and uncooperative. He had very little interest in the evaluation and exhibited minimal cooperation. He was oppositional and hostile with an attitude of defiance. He had a pattern of social relationships which was considered normal, or close to normal. However, he reported very little energy and no interests or hobbies. There was some indication of cyclical patterns of behavior. He went to church some and talked with people there; however, he did not get involved in any other social situations. When leaving the office, the veteran apologized for his outbursts, when asked if these kinds of outbursts happened often, the veteran replied that they did not occur much since he stopped working. This indicated that the veteran had a problem with authority and with people that represent authority. The veteran's most recent psychological examination was conducted by a VA psychologist in May 2002. The veteran reported that "I am not doing worth a shit today." He reported problems with his back and with gout. He reported nightmares every time he went to sleep. He averaged four to five hours of sleep a night. He tried to avoid thinking about war. Loud clapping sounds startled him and he had hit the ground in the past. He was uncomfortable in crowds. When he went to restaurants, he liked to have his back to the wall. He had been getting along better with his wife since she had become dependent on him following breast cancer. He reported that were times when he would bet frustrated and get in fights when he worked. He last worked in 1998 or 1999 in commercial construction. He had a few friends, but rarely saw them. During the interview, the veteran's eye contact was limited and he displayed anxiety throughout the examination. He became increasingly dysphoric discussing his military experiences. His speech was within normal limits with regard to rate and rhythm. His predominant mood was one of depression with anxiety noted as well. Diagnosis was chronic PTSD with a GAF score of 42. The examiner noted that it was difficult to see how the veteran could function in an employment setting. He had a history of fights and difficulties sustaining employment. His functioning was impaired to the point that he was not able to sustain concentration. The examiner felt that the veteran's PTSD symptoms lead to "profound impairment in both social and vocational adaptability." His interpersonal relationships were "extremely limited." He did very little, if any, socializing. Based on a review of the entire claims folder, the Board concludes that the medical evidence of record indicates that the veteran is demonstrably unable to obtain or retain employment due to his PTSD, as evidenced by recent VA and private medical examination reports. The most recent VA examination report of May 2002 indicates that it is doubtful that the veteran could function in an employment environment. Additionally, the evidence shows total occupational and social impairment due to his PTSD as he is shown to have a problem with those in authority. Likewise, according to one examiner, the veteran's symptoms of PTSD have led to profound social and vocational impairment with extremely limited interpersonal relationships. In light of the current clinical findings, the Board finds that the level of disability manifested by the veteran's PTSD more closely approximates the criteria for a 100 percent rating under Diagnostic Code 9411. Accordingly, a 100 percent disability rating is appropriate for the veteran's service-connected PTSD. TDIU Claim As set forth above, the veteran's disability rating for his service connected PTSD is increased to 100 percent. Total disability based upon individual unemployability contemplates a schedular rating less than total. 38 C.F.R. § 4.16(a) (2001). Since the veteran in this case is entitled to a 100 percent schedular rating for his service-connected PTSD, he is not eligible for a TDIU evaluation. See Vettese v. Brown, 7 Vet App. 31 (1994) ("claim for TDIU presupposes that the rating for the condition is less than 100 percent"); Holland v. Brown, 6 Vet App. 443 (1994). In essence a TDIU rating is moot as the veteran has a total rating based on his service connected disability. Therefore, as a matter of law, the veteran's claim for TDIU fails. Whether the July 1969 Denial of Service Connection for a Back Disability Remains Open The veteran contends that a July 1969 rating decision that denied service connection for a back disorder remains open. After a review of the evidence, the Board finds that his contentions are not supported by the evidence. In July 1969, the RO issued a rating action addressing the issue of service connection for stiffness of the back and leg. On VA examination, he reported that his lower back hurt him. The veteran gave a history of history of a hurting his back while loading or unloading oil and fuel drums in Vietnam. Examination of the back was unremarkable. X-ray findings revealed a narrowing of the isthmus of L-5 bilaterally and what appeared to be a defect on the left or a spondylolisthesis. Service connection for developmental anomalies of the lumbar spine was denied as the condition was felt to be a constitutional or developmental abnormality that was not a disability under VA law. The July 1969 rating action awarded service connection for a shrapnel wound of the right thigh with assignment of a 10 percent disability evaluation. The claims folder does not contain a copy of any particular notice letter that was sent to the veteran informing him of the denial of his claim for service connection for a back disability and the reasons for the denial. However, the record contains a VA Form 21-6798, Disability Award worksheet. An explanation of the worksheet, the meaning of its parts, and a description of duties relating to the preparation of awards and disallowances can be found in the version of M21-1 in effect at the time that the RO rendered its July 1969 rating action at chapters fifteen, sixteen, and twenty-three. The worksheet served as the written communication between RO adjudicators and the group known as "Input," who processed awards. See M21-1, paragraphs 15.03, 15.26, and 15.27. The Input group was responsible for typing, sending, and making copies of the rating decision and notice letters on a magnetic strip to be sent to the Hines Data Processing Center (DPC) for storage. See M21-1, paragraphs 15.26, 15. 27, 16.02, 16.03, and 23.11. The worksheet provided the typists with critical information about each case in a standard format. Id. In the present case, Disability Award worksheet completed by RO adjudicators notes at line 15 that a rating action dated July 30, 1969, was prepared. The worksheet instructed Input to use pattern paragraph 10 for the denial. The worksheet informed the Input group that that service connection had been awarded for "residual, shrapnel wound, RT thigh" and that service connection had been denied for "developmental anomalies, lumbar spine." The Input group was to complete a VA Form 20-822, Control Document and Award form, and a Form 21-6782, Original Disability Compensation letter. The VA Form 21-6782 in use in July 1969 included areas to notify claimants of what conditions had been found to be service connected and what conditions had not been found to be service connected. The worksheet notes that typing had been completed on August 4, 1969. See M21-1 paragraphs 16.03 and 23.11 (the reverse side of VA Forms 21-6798 will be used as the worksheet for the preparation of disallowance form letters). The address listed on the Disability Award worksheet was still in use by the veteran as recently as 1974. While a copy of a VA Form 21-6782 is not of record, a VA Form 20-822 dated August 4, 1969, is contained in the claims folder. In August 1982, the veteran sought to "re-open" his claim for service connection for a "lower back" disability. Similarly, in a September 1982 statement, the requested that the RO "re-open my claim for service connection." Additional evidence consisting of VA and private medical records was submitted to the RO. In September 1982, the RO issued a rating action denying service connection for a back disability. It was noted that service connection had previously been denied for developmental anomalies of the lumbar spine. The veteran was notified of this continued denial of service connection and furnished with a copy of his procedural and appellate rights in October 1982. However, the evidence does not show that he filed a timely notice of disagreement or substantive appeal of this decision. In September 1989, the veteran requested a "copy of [his] entire claims file." The evidence shows that the RO complied with his request on September 28, 1989 and released a copy of the claims folder to him. In September 1990, the veteran filed an informal claim for service connection for a back condition. By letter dated in October 1990, the veteran was informed that service connection for a back condition had previously been denied by the RO. The veteran filed a notice of disagreement with this decision. In February 1991, the RO issued a rating decision holding that new and material evidence had not been opened to reopen a previously disallowed claim of service connection for developmental anomalies of the lumbar spine. However, the evidence does not show that the veteran perfected an appeal of this decision to the Board. In a letter to the RO, dated in April 1998, the veteran, through counsel, asserted that he had never been notified of the 1969 denial of his lower back claim, and requested a formal decision on that claim. In a May 1998 letter, the RO responded by stated as follows: A thorough review of out records does not indicate that proper notification was forwarded to [the veteran] at the time a decision was made on this claim in 1969. However, in [a VA] letter dated October 8, 1982, [the veteran] was notified that his claim for a spinal disorder had previously been denied. Based on this information, the notification forwarded in 1982 finalized this issue and the appeal rights have expired. The veteran subsequently filed a notice of disagreement with this letter. Thereafter, a Statement of the Case was issued by the RO and the veteran perfected a timely appeal to the Board. Regulations in effect at the time that that the RO rendered the 1969 rating decision dictate that a claimant would be notified of any decision that disallowed a claim for VA benefits and the reason for the decision. Specifically, the regulation addressing VA's duty to notify claimants of RO decisions read as follows: [T]he claimant will be notified of any decision authorizing the payment of benefit or disallowance of a claim. Notice will include the reason for the decision, the claimant's right to initiate an appeal by filing a notice of disagreement and the time limits within which such notice may be filed. See subpart B, Part 19 of this chapter. 38 C.F.R. § 3.103(1969). Likewise, under subpart B, Part 19, Rule 9: The claimant and his representative, if any, will be informed of the right to initiate an appeal by the filing of a notice of disagreement in writing, and the time limit within which such notice must be filed. This information will be included in each notification of determination of entitlement or nonentitlement to [VA] benefits by the agency of original jurisdiction. 38 C.F.R. § 19.309(a) (1969). As stated previously, the evidence shows that RO adjudicators completed a Disability Award worksheet instructing Input clerks to generate a 20-822 control document and award letter with attachment of a VA Form 21-6782, Original Disability Compensation letter. The Input clerks were informed that service connection was awarded for a shrapnel wound of the right thigh and denied for developmental anomalies of the lumbar spine. The Disability Worksheet notes that typing of the requested action was completed on August 4, 1969. While evidence of record does not contain a copy of any notice letter furnished to the veteran in 1969 informing him of the denial of his claim for service connection for a back disorder and the reasons for the denial, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties". United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The Court has applied the presumption of regularity to all manner of VA process and procedures. Woods v. Gober, 14 Vet. App. 214, 220 (2000). This presumption of regularity has been applied to determine that the Secretary properly discharged his official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision was issued. Tellex v. Principi, - ___Vet. App. ___, No. 98-1886 (Sept. 26, 2001); see also, Butler v. Principi, 244 F. 3d 1337, 1339 (Fed. Cir. 2001). It is well settled that "clear evidence to the contrary" is required to rebut the presumption of regularity, i.e., the presumption that notice was sent in the regular course of government action. Harvey v. Gober, 14 Vet. App. 137 (2000). See also, Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992) (The presumption of regularity supports "the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that [these officials] have properly discharged their official duties."). In the present case, the evidence shows that a Disability Award worksheet was completed by adjudicators, that Input clerks completed typing and entering of the information contained on the worksheet on August 4, 1996, and that a VA Form 20-822 was generated on August 4, 1996. It can be presumed that the RO followed the appropriate provisions contained in the M21-1 in effect in 1969 and informed the veteran of the denial of his claim of service connection for a back disorder via a VA Form 21-6782 that the worksheet indicates was to be generated as an attachment to the completed VA Form 20-822. Specifically, as noted on the worksheet, the VA Form 21-6782 would have indicated that service connection was denied as the veteran's low back disorder was considered a developmental anomaly of the lumbar spine. The worksheet notes that copies of the rating decision and notice letter were sent to Hines DPC on August 4, 1969. Based on the foregoing, it must be presumed that the veteran received a copy of a VA Form 21-6782 that informed him that his claim for service connection for a lumbar spine disorder had been denied as his condition was considered to be the result of developmental anomalies. The Board can find no evidence other than the veterans assertions to rebut the presumption of administrative regularity in the present case. While the RO informed the veteran in May 1998 that a "through review" of the veteran's claims folder did not indicate that proper notice was given him in 1969, the letter does not indicate that the RO had reviewed the aforementioned VA Form 21-6798, Disability Award worksheet. On the contrary, after the veteran filed his notice of disagreement, the RO reviewed the case again and issued a statement of the case in July 1998 with a discussion of the Disability Award worksheet and the fact that notice of the denial of his claim was given in 1969. In the statement of the case, the RO found that the veteran had been given notice of the decision in August 1969. Having found that the RO is presumed to have acted with regularity in furnishing the veteran a copy of VA Form 21- 6782 in August 1969, the Board must determine whether this form satisfied the notice requirements in effect at that time. Although the Form 21-6782 did not include a copy of the veteran's right to appeal and the time limit for filing a notice of disagreement, it did inform the veteran of the reasons for the denial of his claim. That is, he was informed that his back disorder was considered a developmental anomaly. In 1969, VA regulations provided that: While it is contemplated that the agency of original jurisdiction will give proper notice of the right to appeal and the time limit, failure to notify the claimant of his right to such appellate review or the time limit applicable to a notice of disagreement or substantive appeal will not extend the applicable period for taking this action. 38 C.F.R. § 19.310 (1969). Therefore, although the veteran was not informed of his appellate right via the August 1969 VA Form 21-6782, such failure will not extend the period for filing a notice of disagreement. Based on the foregoing, the Board finds that the veteran received adequate notice of the denial of his claim in August 1969. As the evidence does not show that he filed a notice of disagreement of this decision within one year after being notified of it in August 1996, the decision is final. 38 C.F.R. §§ 3.104, 20.302 (2001). ORDER A 100 percent disability rating for PTSD is granted, subject to the laws and regulations governing the payment of VA benefits. The issue of a total disability rating based on individual unemployability resulting from service connected disability is moot. The July 1969 denial of service connection for developmental anomalies of the lumbar spine is final. (CONTINUED ON NEXT PAGE) REMAND The issue of entitlement to an increased rating for the veteran's shell fragment wounds of the right thigh was previously the subject of a February 2000 Board Remand. The RO was asked to obtain additional information from the veteran and then issue a supplemental statement of the case if the decision remanded adverse to the veteran. On remand, the RO obtained private and VA medical evidence to include a VA examination report. However, the evidence does not show that the RO readjudicated the case or issued a supplemental statement of the case. Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (2001). In addition, pertinent VA regulations provide that the agency of original jurisdiction (AOJ) will furnish the appellant and his representative with a SSOC if the AOJ receives additional pertinent evidence after issuance of the most recent SSOC and before the appeal is certified to the Board and the appellate record is transferred to the Board. 67 Fed. Reg. 3,099, 3,104-3,105 (Jan. 23, 2002) (to be codified as amended at 38 C.F.R. § 19.31(b)(1)). Accordingly further Remand is necessary to provide the veteran with a supplemental statement of the case addressing this issue. The Board notes that the pertinent rating criteria for evaluating skin disorders have recently been amended effective from August 30, 2002. See 67 Fed. Reg. 49590-49599 (July 31, 2002) (to be codified as amended at 38 C.F.R. § 4.118). The United States Court of Appeals for Veterans Claims, formerly the United States Court of Veterans Appeals, (Court) has held that for the purpose of appeals, 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 should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Therefore, a remand is necessary to adjudicate the veteran's claim with consideration of the new rating criteria. Based on the foregoing, this case is remanded for the following: The RO should readjudicate the veteran's claim with consideration of the recent changes in the schedular criteria pertaining to the rating of skin disabilities. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Board expresses its gratitude in advance to the RO for assisting in the requested development. 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). No inference should be drawn regarding the final disposition of this claim. 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. 2002) (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. MARK W. GREENSTREET Member, Board of Veterans' Appeals