Citation Nr: 1124295 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 99-05 234 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 50 percent for the posttraumatic stress disorder (PTSD), for purposes of accrued benefits. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to March 1973. He died on April [redacted], 2009. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from an October 1998 rating decision in which the RO denied the claim for a rating in excess of 50 percent for the PTSD. The Veteran filed a notice of disagreement (NOD) in January 1999. A statement of the case (SOC) was issued in February 1999; and, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 1999. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge in Washington, DC. Although notified that his hearing was scheduled for July 18, 2005, the Veteran failed to report for the scheduled hearing, and did not request rescheduling of the hearing. As such, his hearing request was deemed withdrawn. See 38 C.F.R. § 20.702(d) (2010). In January 2001, June 2003 and November 2006, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), in Washington, D.C., for additional development. After completing the requested action, the AMC continued to deny the claim (as reflected, most recently, in a February 2008 supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. In June 2008, the Board denied the claim for a rating in excess of 50 percent for the PTSD. The Veteran, in turn, appealed the Board's June 2008 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2009, the Court, having been notified that the Veteran had died in April 2009, granted a Motion to Dismiss due to the death of the Veteran. Subsequently, in September 2010, the Court granted a motion filed by the Veteran's surviving spouse to vacate the August 2009 dismissal and to substitute herself as an accrued benefits beneficiary for purposes of prosecuting the claim to completion. The caption and issue on appeal have been recharacterized as set forth above, on the title page, in order to reflect her new status. Thereafter, in January 2011, the Court granted the joint motion for remand filed by the parties, vacating the Board's June 2008 decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. The Board notes that, while the Veteran was represented by the Virginia Department of Veterans Services, his surviving spouse (substituted party) has not filed the appropriate documentation for representation, to include a VA Form 21-22 of the duly appointed representative. See 38 C.F.R. § 14.631 (a). As the surviving spouse has not obtained representation, the Board finds that she is proceeding pro se in this appeal. For the reasons expressed below, the matter on appeal is being remanded to the RO. VA will notify the appellant when further action, on her part, is required. REMAND The Board's review of the claims file reveals that additional RO action on this claim on appeal is warranted. The Board notes that the appellant's entitlement to benefits flows from the accrued provisions of 38 U.S.C.A. § 5121 (West 2002 & Supp. 2010) and 38 C.F.R. § 3.1000 (2010). She has not had an opportunity to have the RO adjudicate her claim under those provisions in the first instance. She has not been specifically provided with notice of the applicable laws, regulations, and Court decisions concerning notice and development. Moreover, she has not had the opportunity to make a pertinent presentation. Further, additional pertinent evidence-in particular, the report of a November 2008 VA examination-was received after the issuance of the February 2008 SSOC. However, no SSOC addressing this evidence was issued, as required by regulation. See 38 C.F.R. §§ 19.31, 19.37 (2010). Under these circumstances, the Board has not alternative but to remand the matter on appeal for RO consideration in light of the additional evidence received, in the first instance, and for issuance of an SSOC reflecting such consideration. While this matter is on remand, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the appellant an opportunity to present information and/or evidence pertinent to the claim on appeal, notifying her that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO's letter should inform the appellant of the information and evidence necessary to support her claim for a rating in excess of 50 percent for the PTSD, for purposes of accrued benefits. The RO should also ensure that its notice to the appellant meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)-particularly as regards VA's assignment of effective dates, as appropriate. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2010). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim for a rating in excess of 50 percent for the PTSD, for purposes of accrued benefits should include consideration of whether staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), consistent with Hart v. Mansfield, 21 Vet. App. 505 (2007) is appropriate. Additionally, as indicated, the RO's adjudication of this claim must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of this claim on appeal. Accordingly, this matter is hereby REMANDED to the RO for the following action: 1. The RO should furnish to the appellant a letter requesting that the appellant provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for a rating in excess of 50 percent for the PTSD, for purposes of accrued benefits that is not currently of record. The RO should clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, the RO should assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all evidence (to particularly include all that added to the claims file since the RO's last adjudication of this claim on appeal) and legal and regulatory authority (to include the provisions of 38 U.S.C.A. § 5121 and 38 C.F.R. § 3.1000). The RO's adjudication of the claim should include consideration of whether staged rating, pursuant to Hart (cited above, is warranted). 5. If any benefit sought on appeal remains denied, the RO must furnish to the appellant an appropriate SSOC that includes, among other things, a citation to, and summary of, 38 C.F.R. § 3.1000, along with clear reasons and bases for all determinations, and afford her the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).