Citation Nr: 1304331 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-31 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to an effective date prior to August 14, 2006 for the award of service connection for degenerative arthritis of the left knee, to include as due to clear and unmistakable error (CUE) in rating decisions issued prior to November 2007. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and depressive disorder. REPRESENTATION Appellant represented by: Lee R. Finstad, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to May 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Fargo, North Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, implemented the Board's November 2007 award of service connection for degenerative arthritis of the left knee and assigned an initial 10 percent rating for the disability effective August 14, 2006. This case was previously before the Board in November 2011 at which time it was remanded for additional development. It has now returned to the Board for further appellate action. In June 2011, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of this hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In the Veteran's August 2009 substantive appeal, he contends that the Board decision dated November 7, 2007 contains CUE in its assignment of an effective date of August 14, 2006 for the award of service connection for residuals of a left leg injury. However, review of the Board's decision clearly shows that while service connection for the disability was granted, no effective date was assigned. Instead, the current effective date of August 14, 2006 for the award of service connection for degenerative arthritis of the left knee was assigned by the RO in the April 2008 rating decision currently on appeal. Therefore, the Board finds that a motion for CUE in the Board's November 7, 2007 decision has not been raised. The issue of entitlement to an increased rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's initial claim for entitlement to service connection for residuals of a left leg injury was received by VA on June 17, 1954; the RO denied service connection for a hematoma of the left calf in an unappealed September 1954 rating decision. The denial was confirmed in an unappealed February 1955 rating decision. 2. The Veteran attempted to reopen his claim in October 1956 and service connection for a left leg disability, characterized as a left calf hematoma and left knee condition, was denied in an unappealed November 1956 rating decision. 3. The Veteran made additional attempts to reopen service connection for residuals of a left leg injury and was denied in RO rating and administrative decisions dated in January 1957, February 1957, April 1957, February 1958, January 1984, June 1999, January 2004, March 2005, and November 2006. The reopened claim for service connection was also denied by the Board in May 2002. 4. The Veteran's most recent claim to reopen service connection for residuals of a left leg injury was received on August 14, 2006. 5. In November 2007, the Board reopened and granted the claim for entitlement to service connection for residuals of a left leg injury. The RO implemented the Board's decision in the April 2008 rating decision on appeal and awarded service connection for left knee degenerative arthritis effective August 14, 2006. 6. The Veteran was not provided notice of his appellate rights following the RO's adjudication of his claim to reopen service connection in November 1956 and February 1957. 7. The September 1954, November 1956, and February 1957 rating decisions were adequately supported by the evidence then of record, considered the correct facts as they then existed, correctly applied statutory or regulatory provisions extant at that time, and did not contain an undebatable error that was outcome determinative. 8. The award of service connection in the November 2007 Board decision was not based on receipt of additional service department records. 9. The currently-assigned effective date of August 14, 2006 is the later of the date entitlement to the benefit was shown or the date a valid claim for service connection was received. 10. The Veteran's February 1958 letter to the President of the United States was not a valid notice of disagreement (NOD) with the April 1957 rating decision. CONCLUSIONS OF LAW 1. The September 1954, November 1956, and February 1957 rating decisions did not contain CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2012). 2. The criteria for an effective date earlier than August 14, 2006 for the grant of service connection for degenerative arthritis of the left knee are not met. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.156(c)(3), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that an earlier effective date is warranted for the grant of service connection for degenerative arthritis of the left knee, to include on the basis of CUE in RO decisions issued prior to the Board's award of service connection in November 2007. As this case involves a period stretching over fifty years, the Board finds that a review of the relevant history of the claim for entitlement to service connection is necessary. The Veteran's claim for service connection for a left leg injury was originally received in June 1954. In a September 1954 rating decision, the RO denied the Veteran's claim on the basis that the evidence did not demonstrate the presence of a current chronic disability. Although service records documented an injury to the left leg following a January 1954 jeep accident, a physical examination at discharge in May 1954 and a VA examination in September 1954 were both negative for residuals. The Veteran received notice of the denial of his claim and information pertaining to his appellate rights in September 1954. In January 1955, the Veteran requested to amend his claim to include entitlement to service connection for stomach ulcers. He submitted a January 1955 report of VA hospitalization documenting treatment for a duodenal ulcer and complaints of a throbbing left leg. The report noted that there was no evidence of disease in the left leg. In a February 1955 rating decision, the RO granted service connection for a duodenal ulcer and continued the denial of service connection for residuals of a hematoma of the left calf. Notice of the denial and the Veteran's right to appeal was provided in a February 4, 1955 letter. In October 1956, the Veteran filed a claim to reopen service connection for an injury to the left leg. Along with the claim, he submitted an October 1956 report of private examination documenting a diagnoses of a post-phlebitic leg and internal semilunar cartilage injury. In response, a VA examination was performed in November 1956 which was negative for pathology of the left leg or left knee. The RO denied service connection for residuals of a left calf hematoma and a left knee disability in a November 1956 rating decision, concluding that there was no current disability shown on examination. The November 1956 rating decision also reduced the current disability rating for the service-connected ulcer. Notice of the rating decision and the Veteran's appellate rights was mailed in November 1956, but the notice only addressed the reduction of the Veteran's rating and did not discuss the denial of service connection for a left calf and knee condition. The Veteran filed a new claim to reopen service connection in December 1956. Accompanying the claim was a December 1956 statement from another veteran who had served with the Veteran before and after the in-service jeep accident and leg injury. On January 10, 1957, a letter from the RO informed the Veteran that the evidence he submitted was not new and material and was not sufficient to reopen the claim. A few days later, the Veteran submitted a letter describing the treatment he had received for the claimed disability. The RO responded with another January 1957 letter, informing the Veteran that he should submit evidence that he was currently disabled from a left leg disability, preferably a statement from a physician. In February 1957, the Veteran provided a letter from his parents detailing the Veteran's leg and stomach problems since his return home from service. Later in February 1957, the RO issued a rating decision finding that the evidence was not sufficient to reopen the claim and confirming the administrative rating of January 1957. The record does not indicate that the Veteran was notified of his appellate rights following the February 1957 denial of his claim. In April 1957, the Veteran again submitted additional evidence in support of his claim to reopen. A March 1957 private treatment record showed treatment for an ulcer and right leg weakness and an April 1957 letter from the Veteran described his symptoms. In April 1957, the RO confirmed the previous February 1957 denial of the claim to reopen and informed the Veteran by letter that the record did not indicate that he was disabled due to a left leg condition. The February 1957 notice of the denial included VA Form VB8-4107, which gave the Veteran notice of the one-year time limit for appeal. In February 1958, the Veteran wrote a letter to the President of the United States detailing his efforts to establish compensation for residuals of a left leg injury, to include his complaints of pain and weakness since service. The letter was added to the claims file and interpreted as a claim to reopen service connection. It was accompanied by a January 1958 private treatment record which contained complaints of left leg pain, but did not objectively demonstrate any left leg abnormalities. A February 1958 rating decision confirmed and continued the April 1957 denial of the claim and the Veteran was informed of the denial in a February 1958 letter that included the VA Form VB8-4107 notification of appellate rights. No other communication was received from the Veteran until September 1983, more than 25 years later, when he submitted a new application to reopen service connection for a left leg disability due to the in-service jeep accident. VA did not receive any medical evidence in support of the new claim to reopen, and in a January 1984 rating decision the RO found that new and material evidence had not been received. Notice of the denial and the Veteran's right to appeal was also mailed in January 1984. In April 1999, the Veteran again filed a claim to reopen service connection. In support of the claim, the Veteran submitted records of private treatment dating from January 1984 to April 1999. The records showed a diagnosis of mild degenerative changes in the bilateral knees in December 1996 and a possible meniscal tear of the left knee. The private physician also noted in April 1999 that he could not ascertain whether the Veteran's knee condition was related to an injury that occurred in the late 1940s (presumably, the physician meant the Veteran's in-service left leg injury). A June 1999 rating decision found that the new evidence was not material as it did not establish a nexus between the current left leg/knee condition and the Veteran's in-service injury. The Veteran appealed the June 1999 denial of his claim. In a February 2001 decision, the Board reopened the claim for entitlement to service connection for residuals of a left leg injury and remanded the reopened claim for additional development. The reopened claim returned to the Board and was denied in a May 2002 decision. The Veteran made several other attempts to reopen his claim and was denied in January 2004, March 2005, and November 2006 rating decisions. Proper notice of the denials and the Veteran's right to appeal was provided following each rating decision. Additional evidence was submitted along with these claims, including records of private treatment from October 1976 showing complaints of recurring left knee pain. A September 2004 statement from a private physician also noted that X-rays showed degenerative changes in the left knee only and included a medical opinion that the Veteran's in-service injury likely had contributed to his current left knee pain. The Veteran appealed the November 2006 denial of the claim to the Board, and in November 2007, the Board reopened the claim for entitlement to service connection for residuals of a left leg injury and granted the reopened claim. The Board's decision was based, in part, on a second private medical opinion dated in August 2007 that found the Veteran's left lower leg pain was as likely as not due to the in-service injury. In the April 2008 rating decision on appeal, the RO implemented the Board's decision and awarded service connection for degenerative arthritis of the left knee with an initial 10 percent evaluation effective August 14, 2006. The Veteran contends that an earlier effective date is warranted for the award of service connection for his left knee disability. His arguments fall into two categories: those based on CUE in previous rating decisions and those based on the RO's failure to adequately interpret evidence in support of the claim. The Board will first address the Veteran's contentions regarding CUE. Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The Court of Appeals for Veterans Claims (Court) has propounded the following three-pronged test to determine whether CUE is present in a prior determination: (1) Either the correct facts as they were known at the time were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law which existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet App. 310, 313- 14 (1992) (en banc). The Court has further stated that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, which when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Veteran has raised several allegations regarding CUE in previous RO decisions. First, he contends that the RO committed CUE in its September 1954 and November 1956 rating decisions when it failed to adequately consider lay and medical evidence submitted in support of the claim. Second, the Veteran contends that VA committed CUE when it failed to provide him with notice of his appellate rights following denials of his claim in all rating decisions issued between 1956 and 1984. The failure to provide such notice meant that the rating decisions did not become final, and earlier claims for service connection were still pending at the time of the Board's November 2007 decision that awarded service connection for residuals of a left leg injury. As discussed in the procedural history above, the Veteran was not provided notice of his appellate rights following the denial of his claim to reopen service connection in the November 1956 and February 1957 rating decisions. The Board notes that the law currently provides that a rating decision does not become final until written notification of the decision is issued to the claimant. See 38 U.S.C.A. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 19.25. See also Best v. Brown, 10 Vet. App. 322, 325 (1997) (for a VA decision to become final and binding on a veteran, he or she must first receive written notification of the decision); see, as well, Tablazon v. Brown, 8 Vet. App. 359, 361 (1995), citing Hauck v. Brown, 6 Vet. App. 518 (1994) (where an appellant never received notification of a decision denying his or her claim, then the usual one-year limit for timely appealing the decision does not begin to accrue; instead it is tolled). The written notification also generally must explain the reasons and bases for the decision and apprise the veteran of his or her procedural and appellate rights, in the event the claimant disagrees with the decision and elects to appeal. However, a finding of CUE must be based on the record and law which existed at the time of the prior adjudication. Damrel, supra. The statutory obligation to provide a statement of appellate rights to a claimant was created by the Veterans' Benefits Amendments of 1989, Pub. L. 101-237, § 115(a)(1), 103 Stat. 2062, 2065-66, and was codified in section 3004(a) of title 38 of the United States Code (now section 5104(a)). This provision was effective with respect to decisions rendered by VA after January 31, 1990. 103 Stat. 2066. See Mason v. Brown, 8 Vet. App. 44, 54 (1995); Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991). Thus, prior to 1990, VA was not required to provide an appellant with a statement of appellate rights and the failure to provide such notification in November 1956 and February 1957 cannot be CUE. Additionally, the record clearly shows that the Veteran's claim to reopen was repeatedly denied subsequent to the November 1956 and February 1957 adjudications, with proper notice provided. Therefore, any claim to reopen that was pending since 1956 and/or 1957, was finally adjudicated in the April 1957, February 1958, and January 1984 rating decisions. The Veteran's second contention regarding CUE is that the RO repeatedly failed to lend proper weight to the lay and medical evidence in support of the claim. In July 2008 and May 2009 statements, the Veteran's representative argued that the RO did not consider June 1954 and February 1957 correspondence from the Veteran's parents that described the features and symptoms of the claimed left leg disability. Similarly, in a statement submitted at the June 2011 hearing, the Veteran's representative argued that the RO did not resolve all doubt in favor of the Veteran in the November 1956 rating decision as it did not properly weigh an October 1956 medical examination from the Veteran's private physician. The September 1954, November 1956, and February 1957 rating decisions identified by the Veteran as containing CUE weighed the evidence of record and concluded that it was not adequate to establish the presence of a current left leg disability. The Veteran may disagree with how the evidence was weighed by the RO in coming to this conclusion, but an attack on how the facts were weighed at the time of the previous rating decisions cannot constitute a valid claim of CUE. See Luallen v. Brown, 8 Vet. App. 92, 96 (1995) (mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process). As the Veteran has not shown that the correct facts as they were known at the time were not before the adjudicators, the claim for CUE must fail. Given the law in effect during the rating decisions issued prior to the November 2007 award of service connection and the evidence of record, there is no showing that the RO committed CUE in any of its previous rating decisions, to include the September 1954, November 1956, and February 1957 adjudications. CUE has not been shown in any of these rating decisions, and the claim for an earlier effective date on the basis of CUE must be denied. The Board must now determine whether an effective date earlier than August 14, 2006 is warranted for the award of service connection on any basis other than CUE. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2012). The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of service connection based on new and material evidence received after a final adjudication will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Veteran contends that an earlier effective date is warranted for the grant of service connection for a left leg disability as the criteria for service connection were met as early as the 1950s. As discussed above, the Veteran's initial claim was received by the RO in June 1954 and denied in a September 1954 rating decision. The Veteran did not appeal the denial of the claim, and the September 1954 decision became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). The Veteran made multiple attempts to reopen his claim for service connection and was repeatedly denied in decisions issued by the RO and the Board until November 2007, when the Board reopened and granted the claim for service connection for residuals of a left leg injury. In the April 2008 rating decision on appeal, the RO characterized the Veteran's disability as left knee degenerative arthritis and assigned an effective date for service connection of August 14, 2006, the date his most recent claim to reopen was received. In this case, the new and material evidence used to reopen the Veteran's claim did not consist of service department records. The Board reopened the claim for service connection for a left leg disability in November 2007 based on an August 2007 private medical opinion that suggested a link between the Veteran's current knee disability and his in-service injury. The Board also noted that the Veteran testified in September 2007 that he experienced problems with his left leg since active duty service. Thus, an earlier effective date is not possible based on the receipt of additional service department records. The Veteran alleges that the grant of service connection for a left knee disability should date from 1954 or 1957, when he first met the criteria for an award of service connection. In May 2008 and June 2011 statements, the Veteran's representative contended that lay correspondence from the Veteran's parents dated in June 1954 and February 1957 was adequate to establish the presence of a current left leg disability and a link between the current disability and the Veteran's in-service injury. However, 38 C.F.R. § 3.400(q)(2) is clear that the effective date for an award of service connection based on new and material evidence received after a final denial is the later of the date entitlement arose or the date the claim was received. Nelson v. Principi, 18 Vet. App. 407 (2004). Even if the Board found that entitlement to the benefit arose in the 1950s, as the Veteran's claim for service connection was clearly denied in multiple final rating decisions dating from September 1954, an effective date earlier than August 14, 2006 is not possible. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of award for service connection is not based on the date of earliest medical evidence demonstrating a causal connection, but on the date that the application on which service connection was eventually awarded was filed with VA"). Finally, during the June 2011 hearing, the Veteran's representative argued that the Veteran had submitted a notice of disagreement (NOD) in February 1958 following the April 1957 denial of the claim to reopen service connection for a left leg disability. If a NOD was received, the April 1957 rating decision would not be final, and the claim would have remained pending until a statement of the case (SOC) was issued. The February 1958 correspondence received from the Veteran was a letter to the President of the United States, detailing his difficulty obtaining compensation for the claimed left leg disability. After review of the February 1958 letter from the Veteran, the Board finds that it is not a valid NOD. Although it was received within a year period from the April 1957 denial of the claim to reopen, a NOD must express disagreement with a determination of the agency of original jurisdiction and express a desire to contest the result. 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can reasonably be construed as disagreement with the determination and a desire for appellate review. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2011); see also Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The Veteran's February 1958 letter, while describing his in-service injury and trouble establishing the presence of a left leg disability, did not specifically mention any previous denials of his claim by the RO and did not express disagreement with any previous determination. The letter was correctly interpreted as a new claim to reopen entitlement to service connection, and a rating decision was issued in response in February 1958. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Pursuant to that authority, the Board finds that there is no legal basis by which an effective date for the grant of service connection earlier than August 14, 2006 can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400(b)(2)(i). Duties to Notify and Assist Duty to Notify The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the Veteran's contentions concerning CUE in the rating decisions issued prior to the Board's award of service connection in November 2007, the notice and duty to assist provisions of the VCAA are inapplicable to cases involving CUE in prior decisions. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Livesay v. Principi, 15 Vet. App. 165 (2001). The Veteran has initiated an appeal regarding the effective date assigned following an award of service connection for degenerative arthritis of the left knee. The claims for service connection is now substantiated and the filing of a notice of disagreement as to the April 2008 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the assignment of an effective date triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the agency of original jurisdiction (AOJ) must take development or review action it deems proper under applicable regulations and issue a SOC if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The April 2009 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant regulations used to determine the proper effective date for the Veteran's service-connected left knee disability. The appellant was thus informed of what was needed to achieve an earlier effective date. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an earlier effective date for the disability at issue. Duty to Assist VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. The Board also finds that VA has complied with the November 2011 remand orders of the Board. In response to the Board's remand, the RO adjudicated the Veteran's claim for an earlier effective date for the award of service connection on the basis of CUE in an October 2010 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an effective date prior to August 14, 2006 for the award of service connection for degenerative arthritis of the left knee, to include as due to CUE in rating decisions issued prior to November 2007, is denied. REMAND In August 2010, the Veteran filed a NOD with an April 2010 rating decision that assigned a 30 percent evaluation for service-connected PTSD, effective May 19, 2009. In response, the RO assigned an increased 70 percent evaluation for the Veteran's PTSD in a September 2010 rating decision, also effective May 19, 2009. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). The September 2010 rating decision, while awarding a higher disability evaluation for PTSD, did not assign the maximum benefit available. Therefore, the claim for an increased evaluation for PTSD is still on appeal. The Veteran has not been provided a SOC in response to the NOD, and a remand is therefore required for the issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Issue a SOC to the Veteran and his representative on the issue of entitlement to an increased rating for PTSD. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. 2. If the Veteran perfects an appeal with respect to this matter, ensure that any indicated development is completed before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs