Citation Nr: 1007998 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 05-21 611A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 30 percent for the Veteran's posttraumatic stress disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. dR. Dale, Associate Counsel INTRODUCTION The Veteran had active service from March 1966 to October 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Waco, Texas, Regional Office (RO) which granted service connection for posttraumatic stress disorder (PTSD); assigned a 30 percent evaluation for that disability; and effectuated the award as of August 28, 2003. In May 2008, the Board, in pertinent part, remanded the issue of the initial evaluation for the Veteran's PTSD to the RO for additional action. The Board observes that the Veteran has appealed from the initial evaluation assigned for his service-connected PTSD. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that it was specifically not a claim for an increased disability evaluation. However, the Court did not provided a specific name for the issue in lieu of "increased disability evaluation." In the absence of such direction, the Board has framed the issue as entitlement to an initial evaluation in excess of 30 percent for the Veteran's PTSD. The Veteran is not prejudiced by such action. The Board has not dismissed any issue and the law and regulations governing the evaluation of disabilities are the same regardless of how the issue is styled. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND In its May 2008 Remand instructions, the Board directed that: 2. The Veteran should be afforded a VA examination in order to determine the current manifestations of his service-connected PTSD. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify and describe the symptomatology attributable to the Veteran's service-connected disability. The report of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner must also comment on the extent to which the Veteran's disability affects occupational and social functioning and the Veteran's ability to obtain and maintain substantially gainful employment. The claims folder with a copy of this remand must be made available to the examiner for review in conjunction with the examination. The report of examination must include a complete rationale for all opinions expressed. The report of June 2009 VA examination for compensation purposes conducted in accordance with the Board's Remand instruction expressly states that "the Veteran's C-file was not available at the time of this examination." The United States Court of Appeals for Veterans Claims (Court) has held that the RO's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Again schedule the Veteran for a VA examination for compensation purposes in order to determine the current nature and severity of the Veteran's service-connected PTSD. All indicated tests and studies should be accomplished and the findings then reported in detail. Send the claims folders to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 2. Then readjudicate the Veteran's entitlement to an initial evaluation in excess of 30 percent for his PTSD. If the benefit sought on appeal remains denied, the Veteran should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. The Veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's appeal must be afforded expeditious treatment by the VA. 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 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 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. _________________________________________________ J. T. HUTCHESON Acting 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) (2009).