Citation Nr: 0810448 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-22 037A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than April 12, 2001 for the assignment of a 100 percent evaluation for post- traumatic stress disorder ("PTSD"). ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The veteran had active service from April 1967 to April 1970. By rating action in March 1998, the Department of Veterans Affairs ("VA") Regional Office ("RO") granted service connection for PTSD and assigned a 50 percent evaluation effective from June 30, 1997, the date of receipt of claim. The veteran and his representative were notified of this decision and did not appeal. This matter initially came before the Board of Veterans Appeals ("BVA" or "Board") on appeal from a December 2001 rating decision by the RO which, in part, assigned a 100 percent evaluation under the provisions of 38 C.F.R. § 4.29 for hospitalization effective from January 20, 2001, and an increased evaluation of 70 percent for PTSD from May 1, 2001 based upon an increased rating request submitted by the veteran in April 2001. A subsequent rating decision dated in March 2003 assigned a 100 percent schedular rating for the veteran's PTSD effective from April 12, 2001, the date of receipt of the veteran's claim. See also August 2002 rating decision. In September 2005, the Board promulgated a decision which denied an effective date earlier than April 12, 2001 for the assignment of his 100 percent schedular rating for PTSD, and the veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("the Court"). In February 2006, the Court granted a Joint Motion for Remand submitted by the parties and remanded the September 2005 decision to the Board. The Board remanded the appeal to the RO in April 2006 for additional development consistent with the instructions set forth in the February 2006 Joint Motion for Remand. The veteran's appeal was returned to the Board in November 2006. Thereafter, in a February 2007 decision, the Board denied that veteran's request for an effective date earlier than April 12, 2001 for the assignment of his 100 percent schedular evaluation. The veteran appealed the Board's November 2006 decision to the Court. In December 2007, the Court vacated and remanded the Board's February 2007 decision in light of another Joint Motion for Remand submitted by the parties. See December 2007 Joint Motion for Remand; December 2007 Court order. As such, the appeal has been returned to the Board for compliance with the instructions set forth in the December 2007 Joint Motion for Remand. In light of the instructions set forth in the December 2007 Joint Motion for Remand, the Board REMANDS the appeal to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND A review of the record with respect to the veteran's claim of entitlement to an effective date earlier than April 12, 2001 for the assignment of a 100 percent evaluation for his service-connected PTSD discloses a need for further development prior to final appellate review. In this regard, the Board observes that the effective date provisions for awards of increased disability compensation include a general rule that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The corresponding VA regulation expresses this rule as "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under the general rule provided by the law, an effective date for an increased rating may be assigned later than the date of receipt of claim - if the evidence shows that the increase in disability actually occurred after the claim was filed-but never earlier than the date of claim. The law provides one exception to this general rule governing increased rating claims. If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is factually ascertainable that the increase occurred as long as the claim for the increased disability rating was received within one year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). As referenced above, the veteran was granted a temporary total evaluation based on hospitalization for treatment of PTSD from January 20, 2001 to May 1, 2001 under the provisions of 38 C.F.R. § 4.29, and a 70 percent evaluation from May 1, 2001. See December 2001 rating decision. In August 2002, the RO assigned a 100 percent schedular evaluation for the veteran's PTSD effective from December 21, 2001, the date of receipt of the veteran's notice of disagreement. Thereafter, in March 2003, the RO found that there was clear and unmistakable error in the August 2002 rating decision and assigned a 100 percent schedular evaluation for PTSD effective from April 12, 2001, the date of receipt of his claim for an increased rating. In increasing the veteran's disability rating, the RO reviewed VA medical records identified by the veteran, including a disability determination and medical records from the Social Security Administration, that showed the veteran was voluntarily admitted to a Dual Diagnosis unit on January 20, 2001 for treatment of alcohol dependence and depression. After physical detoxification from alcohol, the veteran was transferred to the Substance Abuse Residential Treatment Program on January 30, 2001 and was an inpatient until March 13, 2001. Thereafter, he was admitted to the Stress Disorder Treatment Unit of another VA hospital for treatment of PTSD from March 20, 2001 to April 24, 2001. The veteran appealed the assignment of April 12, 2001 as the effective date for his 100 percent schedular evaluation. See April 2003 Notice of Disagreement; June 2003 Statement of the Case; August 2003 VA-Form 9. In a September 2005 decision, the Board denied the veteran's claim. However, this decision was vacated and remanded by the Court on the basis of a Joint Motion in which the parties argued that the Board erred in not considering whether "there was a factually ascertainable increase during the period from April 12, 2000 to January 19, 2001" (i.e., the one year period prior to receipt of the veteran's claim for an increased rating under the provisions of 38 C.F.R. § 3.400(o)(2)). See February 2006 Joint Motion for Remand, p. 3; February 2006 Court order. In compliance with the February 2006 Court order, the Board remanded the veteran's claim to the RO with instructions to, among other things, take appropriate actions to obtain VA medical records from all VA medical facilities where the veteran was treated for his PTSD from April 2000 to April 2001. See April 2006 BVA decision, p. 3. Upon completion of this development, the RO continued to deny the assignment of an earlier effective date. See October 2006 Supplemental Statement of the Case. The appeal was then returned to the Board; and the Board issued its February 2007 decision denying the veteran's claim. On appeal to the Court, the parties argued that the Board erred in issuing its February 2007 decision because it failed to comply with the requisite duty to assist provisions "when it did not request medical records dating back to January of 2000" since the evidence of record showed that the veteran received inpatient treatment for his PTSD symptoms beginning January 21, 2001. See December 2007 Joint Motion to Remand, pgs. 1, 2. In its December 2007 order, the Court granted the parties' Joint Motion for Remand and ordered that the Board comply with the instructions set forth therein. Therefore, in compliance with the Court's December 2007 order, the Board remands this case to the RO for the purpose of obtaining the medical records referenced in the December 2007 Joint Motion to Remand. Accordingly, the case is REMANDED for the following actions: 1. The RO should ensure that all notification and development action required by the VCAA and implementing VA regulations is completed, including the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A and 5107. See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The RO should once again take appropriate steps to contact the veteran and obtain the names of all VA medical facilities where he was treated for his PTSD from January 2000 to January 2001. Thereafter, the RO should attempt to obtain all records from the identified facilities and associate them with the claims file. Of particular interest are all medical records for treatment at VAMC Hines from January 20, 2000 to January 20, 2001. If any records identified by the veteran cannot be obtained, he should be so informed and it should be documented in the claims folder. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development; 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. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran unless 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. 2006). _________________________________________________ S. L. Kennedy 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).