Citation Nr: 0813864 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-05 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from April 1966 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision of the Regional Office (RO) that granted the veteran's claim for service connection for PTSD, and assigned a 50 percent evaluation for it. The veteran disagreed with the assigned rating. By decision dated in July 2005, the Board denied the veteran's claim for a rating in excess of 50 percent for PTSD. He appealed this determination to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated June 8, 2006, granted a Joint Motion for Partial Remand. In May 2007, the Board remanded the claim for additional development of the record. The Board notes that the July 2005 decision also denied service connection for hypertension. The Joint Motion noted that the parties sought to dismiss this claim. Accordingly, this decision is limited to the issue set forth on the cover page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In its May 2007 remand, the Board, among other things, directed the RO to obtain VA outpatient treatment records since December 2003. There is no indication in the record that a request for the VA records was made. The Board notes that during the December 2007 VA psychiatric examination, it was reported that the veteran was being treated for a psychiatric disability at the VA. The necessity for obtaining the outpatient records is enhanced by the fact that there are divergent Global Assessment of Functioning scores in the record. In this regard, the Board notes that the outpatient treatment records currently on file reflect Global Assessment of Functioning scores ranging from 30 to 55. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the VA has received correspondence from Neil D. Jamieson, Jr., an attorney. The VA has, pursuant to a request from Mr. Jamieson (along with a release signed by the veteran), furnished a copy of the veteran's claims folder to him. There is nothing in the record, however, establishing that the veteran has designated Mr. Jamieson to be his representative for his VA claim. Additionally, in a recent decision, the Court held that for an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. To ensure notice compliance, a letter providing this information should be provided to the veteran on remand. Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO/AMC for action as follows: 1. Send the veteran notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) advising the veteran that, to substantiate a claim for a higher rating, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. The notice must also provide examples of the types of medical and lay evidence that he may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. Obtain and associate with the claims file any pertinent records adequately identified by the veteran, including any relevant VA medical records from the Togus VA Medical Center, to include the Saco clinic, dating since December 2003. 3. The RO/AMC should advise the veteran that he currently does not have a representative for his claim before the VA, and furnish the appropriate form to him so that he may, if he so desires, appoint a representative. 4. Following completion of the above, the RO/AMC should review the evidence and determine whether the veteran's claim may be granted. If not, he should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). _________________________________________________ K. A. BANFIELD 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).