Citation Nr: 1123871 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 10-03 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to January 5, 2009 for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to July 15, 2005, for the grant of service connection for PTSD. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran, Wife and Son ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD. A notice of disagreement was received in July 2008, a statement of the case was issued in October 2009, and a substantive appeal was received in December 2009. A personal RO hearing was held in November 2010. In his substantive appeal, the Veteran also requested a Board hearing at the local RO, which was subsequently withdrawn in May 2011. By rating decision in March 2009, the RO granted a temporary 100 percent evaluation from January 5, 2009 to March 1, 2009. Subsequently, in a March 2011 rating decision, the RO increased the PTSD disability rating to a maximum 100 percent, effective March 1, 2009. Nevertheless, although the maximum 100 percent disability rating has been assigned from January 5, 2009, the Board must still determine whether a higher initial rating is warranted prior to January 5, 2009. AB v. Brown, 6 Vet.App. 35, 39 (1993). The issue therefore remains in appellate status. 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 claims file shows that the RO previously denied a claim for service connection for PTSD in June 1997, and the Veteran appealed. The RO issued a statement of the case in May 1998. However, there is no substantive appeal of record. At the RO hearing, the Veteran's wife testified that the Veteran received VA treatment in 1998 within the time frame of when the substantive appeal should have been filed. She specifically indicated that the examiner at the VA indicated that he would assist the Veteran in filing his substantive appeal and that this statement should be documented in the Veteran's VA treatment records. Prior to the issuance of the statement of the case, a May 1998 Report of Contact showed that the RO contacted VA clinics in Honolulu and Maui for records. The Maui clinic indicated that the Veteran's chart only showed treatment at the Vet Center back in 1996 and PRRP referral in 1997. The Honolulu clinic did not have any records for the Veteran. However, while VA treatment records from May 2006 to March 2011 have been associated with the claims file, there is no indication in the claims file that treatment records from May 1998 to March 2007 have been requested. As VA medical records are constructively of record and must be obtained, the RO request VA treatment records from May 1998 to May 2006. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Appropriate action should be taken to obtain copies of all VA treatment records from May 1998 to May 2006. If these records are unavailable, it should be clearly noted in the claims file. 2. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. 2010). _________________________________________________ ALAN S. PEEVY 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).