Citation Nr: 1047167 Decision Date: 12/17/10 Archive Date: 12/22/10 DOCKET NO. 03-20 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and aggravation of a personality disorder. 2. Entitlement to an increased disability rating for major depression, rated as 30 percent disabling prior to September 26, 2006, and as 50 percent disabling on and after that date. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION When the appellant was separated from service in July 1990, his DD-214 showed a total of more than 22 years of active service. Documents in the file confirm active duty from March 1967 to January 1970 and from October 1978 to July 1990. The service treatment records include an enlistment examination dated in April 1971, with outpatient records dated soon thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant submitted a notice of disagreement with this decision in June 2002 and subsequently perfected his appeal in July 2003. The Board notes that during the pendency of the appellant's appeal, jurisdiction of these claims was transferred from the Muskogee, Oklahoma, RO to the Pittsburgh, Pennsylvania, RO. The appellant and his wife participated in a Decision Review Officer hearing in February 2004 and in a Travel Board hearing with the undersigned Chief Veterans Law Judge in September 2005. Transcripts of those proceedings have been associated with the appellant's claims file. These claims were previously remanded by the Board in October 2004, October 2005, and June 2009 for additional evidentiary development. While this claim was most recently in remand status, a September 2010 rating decision granted a 50 percent rating for major depression, effective from September 26, 2006. This was not a full grant of the benefits sought on appeal because higher disability ratings are available. Therefore, this issue is still before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (After the veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 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 Board is cognizant of the fact that the appellant's case has been in adjudicative status since 2003, and it has already been remanded in the past. Consequently, the Board wishes to assure the appellant that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claims. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In the June 2009 remand, the AMC was instructed to obtain the appellant's personnel records. In June 2009, these records were requested. These records were subsequently added to Volume 2 of the Veteran's claims file alongside the appellant's service treatment records which were already of record. However, there is no indication that the appellant's personnel records were reviewed and the October 2010 Supplemental Statement of the Case does not reflect that these records were reviewed. The appellant has provided general statements regarding his alleged stressors (i.e. being associated with Special Forces and combat missions associated therewith) and review of the Veteran's personnel records is necessary. Additionally, the Board notes that since the outcome of the claim for service connection for the personality disorder and/or PTSD has a direct impact on the disability rating VA may assign for the appellant's service-connected depressive disorder, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: The AMC should review the appellant's personnel records and readjudicate these claims. If the claims remain denied, a supplemental statement of the case should be provided to the appellant and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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. 2010). _________________________________________________ MICHELLE L. KANE 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) (2010).