Citation Nr: 1129740 Decision Date: 08/11/11 Archive Date: 08/23/11 DOCKET NO. 10-04 696 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to December 8, 2008. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to April 1980, and from February 1981 to February 1984. This appeal to the Board of Veterans' Appeals (Board) initially arose from an April 2005 rating decision in which the RO denied the service connection for PTSD. The Veteran perfected an appeal as to that denial. In January 2008, the Board remanded the Veteran's claim for service connection for PTSD to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing further action, the AMC, in a February 2009 rating decision, granted service connection for PTSD. The AMC assigned an initial rating of 30 percent for PTSD, effective April 20, 2004, and a 100 percent rating for PTSD from December 8, 2008. In June 2009, the Veteran filed a notice of disagreement (NOD) with the initial disability rating. A statement of the case (SOC) was issued in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2010. Although the RO (via the AMC) has characterized the matter remaining on appeal as entitlement to an effective date earlier than December 8, 2008, for the award of a 100 percent rating for PTSD, this appeal essentially involves disagreement with the initial rating assigned following the grant of service connection. Accordingly, the Board has recharacterized this matter, taking in account the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). For the reasons expressed below, the matter on appeal is being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. The record reflects that there are outstanding VA medical records which may be pertinent to the claim for higher rating for PTSD. Specifically, documents in the claims file indicate that the Veteran has been receiving treatment for psychiatric and other disabilities at the VA Community Based Outpatient Clinic (CBOC) in Greenville, North Carolina, since March 2005. Presently, the claims file contains no records of treatment from that facility. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Greenville VA CBOC all outstanding records of relevant VA evaluation and/or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also obtain other Federal records. Documents in the claims file reflect that the Veteran applied for disability benefits from the Social Security Administration (SSA); apparently, sometime around 2005. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the RO should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim (if one has been made), as well as copies of all medical records underlying the consideration of his application for benefits, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. The RO should, in addition, obtain the Veteran's medical and personnel file, if any, generated during the course of his reported 15-year employment with the U.S. Postal Service, as requested in the Board's January 2008 remand. Although the matter considered by the Board in January 2008 (service connection for PTSD) has since been resolved in the Veteran's favor, the available evidence indicates that the Veteran may have been actively employed by the U.S. Postal Service until sometime in 2005. As such, the records of that employment could be relevant to the matter currently under consideration. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 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 should specifically request that the Veteran provide authorization for it to obtain any outstanding private medical records, including a complete copy of all clinical and other relevant records in the possession of the Goldsboro Psychiatric Clinic, P.A., in Goldsboro, North Carolina. The RO should also ensure that its notice to the Veteran meets the requirements of the decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)-particularly as regards VA's assignment of disability ratings and effective dates-as appropriate. After providing the required notice, the RO should attempt to obtain any additional evidence for which the Veteran 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 & Supp. 2010); 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 should include consideration of whether "staged" rating of the Veteran's disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited to above) is appropriate for any period prior to December 8, 2008. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Greenville VA CBOC all outstanding pertinent records of mental health evaluation and/or treatment of the Veteran. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should request from SSA a copy of its determination on the Veteran's claim for disability benefits (if one has been made), as well as copies of all medical records underlying its consideration of the Veteran's application for benefits. In requesting these records, the RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO should request from appropriate sources a copy of the Veteran's medical and personnel file, if any, generated during the course of his reported 15-year employment with the U.S. Postal Service. In requesting these records, the RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 4. The RO should request that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should specifically request that the Veteran provide authorization for it to obtain any outstanding private medical records, including a complete copy of all clinical and other relevant records in the possession of the Goldsboro Psychiatric Clinic, P.A., in Goldsboro, North Carolina. The RO should also ensure that its notice to the Veteran meets the requirements of the decision in Dingess/Hartman (cited above)-particularly as regards disability ratings and effective dates-as appropriate. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 5. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified-to include a complete copy of all clinical and other relevant records in the possession of the Goldsboro Psychiatric Clinic, P.A., in Goldsboro, North Carolina -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 Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. 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). 7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the matter remaining on appeal in light of all pertinent evidence and legal authority. The RO's adjudication of the claim should include consideration of whether "staged" rating of the Veteran's disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited to above) is appropriate for any period prior to December 8, 2008. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford him 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; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he 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).