Citation Nr: 0809686 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-41 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 30 percent from April 8, 2003 to December 17, 2003, for service-connected post-traumatic stress disorder. 2. Entitlement to an initial disability evaluation in excess of 50 percent from December 18, 2003 to February 4, 2004, for service-connected post-traumatic stress disorder. 3. Entitlement to an initial disability evaluation in excess of 70 percent from February 5, 2004, for service-connected post-traumatic stress disorder. 4. Entitlement to an effective date earlier than February 5, 2004 for the grant of a 70 percent disability evaluation for service-connected post-traumatic stress disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran served on active duty from October 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Portland, Oregon, Regional Office (RO) that granted service connection for post-traumatic stress disorder and assigned the successive ratings and effective dates for those ratings now under appeal as noted above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND In the report of an August 2003 VA psychiatric evaluation, it was noted that the veteran had been in receipt of treatment from "Mike De Maio of the Salem Vet Center" since May 2003. In his November 2003 notice of disagreement, the veteran indicated that he was being treated for his post-traumatic stress disorder by Mike De Maio of the Salem Vet Center. A January 2005 VA hospitalization summary indicated that the veteran was in receipt of outpatient post-traumatic stress disorder therapy with Lauren McClellan at the Salem Vet Center, which included biweekly individual therapy and weekly group therapy. Further, in May 2004, a statement was received by the RO from Dr. Steven Voris, LCSW. In the statement, Dr. Voris wrote that the veteran was being seen by him for treatment of his post-traumatic stress disorder symptoms. The medical records of the treatment of the veteran by Mike De Maio and Lauren McClellan of the Salem Vet Center, or Dr. Steven Voris, LCSW, are not contained in the claims file and there is no indication that they have been requested. It is incumbent upon VA to assist the veteran in obtaining treatment records and medical evidence, the possible location of which has been specifically identified by the veteran, in order to fully determine the nature and severity of the disability at issue. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. Secondly, upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The RO provided the veteran post-initial adjudication of the increased rating issue on appeal by letter dated in March 2006. This notice letter, however, did not discuss the specific criteria for an increased rating, thus, the duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Based upon a careful reading the statements submitted by the veteran in support of his claim to date, it is clear that he is not aware of the specific criteria that is needed for a successful claim for an increased rating. Specifically, in his notice of disagreement and substantive appeal, the veteran generally described the occupational impairment caused by his service-connected post-traumatic stress disorder, but did not advance any arguments with respect to his social impairment, which is equally relevant in the pertinent schedular criteria. 38 C.F.R. § 4.130, Diagnostic 9411 (2007). Thus, it is necessary that he be provided an additional notice letter discussing the criteria for an increased rating in accordance with the holding in Vazquez- Flores, supra. Under the circumstances, it is necessary that the case be remanded to the RO via the AMC for the following actions: 1. Provide the veteran with specific written notice of the rating criteria necessary for the increased rating claim at issue in accordance with the holding in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). 2. Ask the veteran to provide the names of any health care providers, in addition to Mike De Maio, Lauren McClellan, the Salem Vet Center, and Dr. Steven Voris, LCSW, who have treated him for post- traumatic stress disorder since he filed his claim for service connection in April 2003. 3. After obtaining all necessary information, authorizations, and releases, attempt to obtain copies of any treatment records from Mike De Maio, Lauren McClellan, the Salem Vet Center, and Dr. Steven Voris, LCSW, and any other health care providers identified by the veteran who have treated him for post- traumatic stress disorder. All records obtained should be associated with the claims file. 4. Following an appropriate period of time for response, readjudicate the veteran's claim for the staged increased disability ratings for his service- connected post-traumatic stress disorder, taking into consideration all evidence contained in the claims file. If any benefit on appeal remains denied the veteran should be provided a supplemental statement of the case and be given the legally requisite opportunity to respond. The claims folder should be returned to the Board. The purpose of this remand is to ensure due process and to assist the appellant in the development of her claim. No action by the appellant is required until he receives further notice. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2007). _________________________________________________ M. E. LARKIN 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) (2007).