Citation Nr: 0814086 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 00-11 945A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 70 percent for post- traumatic stress disorder (PTSD) for the period from November 2, 1998, to April 24, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from September 1952 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, the RO granted service connection for PTSD, assigning a 30 percent evaluation therefor effective November 2, 1998. In February 2002, the RO increased the assigned initial evaluation to 50 percent, effective November 2, 1998. Later in February 2002, the veteran testified before the undersigned at a hearing held at the RO. The Board remanded this case in January 2004 for further development. On return of the case, the Board, in a November 2005 decision, granted entitlement to an initial 70 percent evaluation for PTSD, effective November 2, 1998. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in a May 2007 memorandum decision, the Court vacated that portion of the November 2005 Board decision which denied entitlement to an initial disability rating in excess of 70 percent for PTSD, and remanded the case to the Board. The record reflects that in May 2007, the RO granted entitlement to a 100 percent evaluation for PTSD, but only effective for the period since April 25, 2006. As this represents the maximum disability evaluation assignable for PTSD for the above period, the Board has recharacterized the issue on appeal. As noted in the November 2005 Board decision, the veteran has raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). Although the grant of a 100 percent rating from April 25, 2006 renders the TDIU claim moot for that period, the veteran remains entitled to have his claim adjudicated with respect to the period prior to that date. See VAOPGCPREC 5-2005. The Board therefore again refers the matter to the RO for appropriate action. 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 The May 2007 memorandum decision concluded that VA erred in failing to obtain outstanding medical records from several specific sources. In particular, the Court determined that VA should have obtained records from the following VA medical centers (VAMCs): Augusta, Georgia; Columbia, South Carolina; and Tuscaloosa, Alabama. In addition, the Court identified Southeast Medical Center and Wiregrass Hospital as two private medical facilities from which VA should have obtained records prior to adjudicating this appeal. The Board notes that in his brief to the Court, VA's Secretary additionally identified the Highland Hospital (or Medical Center) as another source of private medical records for the veteran. In light of the above, the Board will remand the case to ensure that VA's duty to assist the veteran in obtaining evidence in connection with his claim is met. The Board also notes that a number of VA treatment reports were added to the claims files since the Board's November 2005 decision. Prior to recertification of the case to the Board, this evidence should be addressed in a supplemental statement of the case. The memorandum decision additionally suggested, but did not require, that VA consider affording the veteran another VA examination. The Court's concerns were based on the age of the December 2001 VA examination previously relied on by the Board. The record reflects, however, that while the case was pending at the Court, the veteran attended a VA examination in May 2007. In light of this, the Board will not, at this time, order additional VA examination of the veteran. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, to specifically include the Southeast (or Southeastern) Medical Center, Wiregrass Hospital, and Highland Hospital (or Medical Center), who may possess additional records pertinent to his claim. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records, to include from Southeast (or Southeastern) Medical Center, Wiregrass Hospital, and Highland Hospital (or Medical Center) which have not already been obtained. In any event, the RO should obtain medical records for the veteran from the following VA facilities for the period from September 1952 to the present: the VAMCs in Augusta, Georgia; Columbia, South Carolina; and Tuscaloosa, Alabama. 2. If the RO is unsuccessful in obtaining any medical records identified by the veteran, it should inform the veteran and his representative of this and ask them to provide a copy of the outstanding medical records. 3. The RO should then prepare a new rating decision and readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, which should include consideration of all evidence added to the record since the last supplemental statement of the case in May 2005, and provide the appellant and his representative an opportunity to respond. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).