Citation Nr: 1206384 Decision Date: 02/21/12 Archive Date: 03/01/12 DOCKET NO. 05-21 396 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD, prior to August 30, 2008. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2005 rating decision in which the RO granted service connection for PTSD and assigned an initial 10 percent rating, effective November 10, 2004 (the date of the claim for service connection). In February 2005, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. In a May 2005 rating decision, the RO granted an initial 30 percent rating for PTSD, effective November 10, 2004. Thereafter, the RO issued a statement of the case (SOC) in May 2005, and the Veteran filed a written statement (accepted as a substantive appeal in lieu of a VA Form 9) in July 2005. In March 2007, the Board remanded the claim for a higher initial rating for PTSD, to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional action, to include arranging for the Veteran to undergo VA examination. In March 2009, the AMC assigned an initial, 50 percent rating for PTSD, effective November 10, 2004, but denied an initial rating in excess of 50 percent (as reflected in an April 2009 supplemental SOC (SSOC)). In a September 2010 decision, the Board determined that the criteria for an initial, 70 percent rating for the Veteran's PTSD were met, and that, on the facts of the case, discussion of the Veteran's entitlement to the maximum, 100 percent rating a higher rating was not required. However, the Board characterized the appeal as also encompassing the matter of the Veteran's entitlement to a TDIU due to service-connected PTSD, and remanded the TDIU claim to the RO, via the AMC, for further action. The Veteran appealed the Board's September 2010 decision on the matter of a higher rating for PTSD to the United States Court of Appeals for Veterans Claims (Court). At that time, he was represented by private attorney Glenn G. Bergman [however, the Board notes, parenthetically, that representation of the Veteran by service organization Vietnam Veterans of America has since resumed.] In March 2011, the Court granted the joint motion for partial remand filed by representatives for both parties, vacating the Board's decision to the extent that it "denied" entitlement to a rating in excess of 70 percent for PTSD, and remanding this matter to the Board for further proceedings consistent with the joint motion. In an April 2011 rating decision, the RO implemented the Board's September 2010 decision and assigned an initial rating of 70 percent for PTSD, effective November 10, 2004. In a subsequent rating decision of June 2011, the RO awarded the Veteran a TDIU, effective August 30, 2008. In January 2012, the Veteran's representative contended that the award of TDIU should have also been effective from the November 10, 2004 date of claim for service connection for PTSD. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that in January 2012 correspondence, the Veteran's representative raised the issue of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or housebound status. It does not appear that this claim has yet been addressed by the RO. As such, this matter is not properly before the Board, and is thus referred to the RO for appropriate action. REMAND In light of points raised in the parties' joint motion for remand, and the Board's review of the claims file, further RO action in this appeal is warranted. In the September 2010 decision, the Board determined that the Veteran's symptoms, which included avoidance, hyperarousal, memory impairment, intrusive thoughts, auditory and visual hallucinations, nightmares, difficulty sleeping, anger control problems, and periodic suicidal ideation, collectively, suggested occupational and social impairment with deficiencies in most areas. As such, the Board awarded the Veteran a 70 percent rating for his PTSD from November 10, 2004. In so doing, the Board determined that it had fully resolved the claim, noting that, in argument presented in an August 2010 informal hearing presentation (IHP), the Veteran's representative indicated that the Veteran was specifically seeking a 70 percent rating. As such, the Board determined that a discussion of whether any higher rating was warranted was not necessary, citing Hamilton v. Brown, 4 Vet. App. 528 (1993) (holding that where a claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor the Board has authority to adjudicate those specific claims). However, in the March 2011 joint motion, the parties disagreed with the Board's determination, noting that the Board's decision not discuss the Veteran's entitlement to a rating in excess of 70 percent for PTSD was contrary to the holding of AB v. Brown, 6 Vet. App, 35, 38 (1993). Specifically, the parties emphasized that in AB, the Court held that where "there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition, RO and BVA are required to consider entitlement to all available ratings for that condition." Joint Motion at p. 4, citing AB, 6 Vet. App. at 39. In this regard, the parties determined that it was not entirely clear from a liberal reading of the August 2010 IHP that the Veteran was not seeking a benefit greater than a 70 percent rating. Specifically, the parties pointed out that the Veteran's argument was titled, "The Veteran is Entitled to a Schedular Rating over 50 percent for PTSD." Further, the parties found that as the Board implicitly acknowledged that a rating in excess of 70 percent (i.e. entitlement to TDIU), had been raised by the Veteran, the Board erred in finding that there was a clearly expressed intent of the Veteran to limit his appeal to entitlement to a 70 percent rating only. Accordingly, the matter of the Veteran's entitlement to a 70 percent rating for a TDIU, along with the matter of entitlement to a TDIU for PTSD prior to August 30, 2008, remain for the Board's consideration. As noted by the parties, on these facts-and, consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)-the claim for a TDIU is, essentially, a component of the claim for higher rating. Joint Motion at p. 5. However, the Board's review of the claims file reveals that further RO action on the claims, prior to appellate consideration, is warranted. Since the Board's September 2010 decision, the claims file reflects that there may be pertinent VA medical records outstanding. Specifically, in a November 2010 letter the Veteran indicated that he had been admitted into a two-week inpatient treatment program for his PTSD scheduled from February 22, 2011 to March 8, 2011 in the Batavia VA PTSD program. Records from this hospitalization have not been obtained. Because the noted records could bear on the outcome of the Veteran's claim for a higher rating for his PTSD, efforts should be made to procure them. On remand, the RO should also obtain and associate with the claims file all other outstanding VA medical records. The record reflects that the Veteran has been receiving treatment at the Rochester Outpatient Clinic (OPC), as well as at the VA Medical Center (VAMC) in Batavia. While the claims file currently includes treatment records dated up to January 2010 from the Batavia VAMC, and records dated up to October 2010 from the Rochester OPC, more recent treatment records may now be available. 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 above-noted facilities all outstanding, pertinent records, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Also, to ensure that all due process requirements are met, on remand, the RO should give the appellant another opportunity to present information and/or evidence pertinent to the claims 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 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claim for a rating in excess of 70 percent for PTSD 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 v. West, 12 Vet. App. 119, 126 (1999), is appropriate. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Batavia VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran since January 2010, to specifically include records pertaining to the Veteran's two-week inpatient stay from February 22, 2011 to March 8, 2011 in the Batavia VA PTSD program. The RO should also obtain from the Rochester OPC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, since October 2010. 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 send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, the RO should assist him 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 Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid further 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). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. The RO's adjudication of the claim for a higher initial rating for PTSD should include consideration of whether "staged" rating of the Veteran's disability, pursuant to Fenderson (cited above) is appropriate. 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them 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 benefits requested should be granted or denied. The Veteran 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. 2011). _________________________________________________ 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) (2011).