Citation Nr: 1317341 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-20 764 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating in excess of 50 percent prior to October 31, 2012 and in excess of 70 beginning on that date for the service-connected adjustment disorder with mixed emotional features (diagnosed as pain disorder and posttraumatic stress disorder (PTSD)). ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2008 by the RO that granted service connection for an adjustment disorder with mixed emotional features, effective on April 11, 2007. In a June 2011 rating decision, the Appeals Management Center (AMC) recharacterized the increased rating claim for the service-connected adjustment disorder with mixed emotional features, chronic as chronic pain disorder and PTSD, and assigned a higher rating of 50 percent disabling, effective on May 27, 2010. This decision granted service connection for PTSD. In an April 2012 rating decision, the AMC made the rating of 50 percent for the service-connected adjustment disorder with mixed emotional features, chronic diagnosed as chronic pain disorder and PTSD, effective on April 11, 2007. In a January 2013 rating decision, the AMC increased the evaluation to 70 percent disabling for the service-connected adjustment disorder with mixed emotional features, chronic diagnosed as chronic pain disorder and PTSD, effective on October 31, 2012. The issue, however, remains in appellate status as the rating was not assigned during the entire appeal period, and the Veteran has noted disagreement with the effective date assigned to the 70 percent disability rating. See AB v. Brown, 6 Vet. App. 35 (1993); see January 2013 statement. A review of the Virtual VA paperless claims processing system reveals additional service treatment records from the Salisbury VAMC and Winston-Salem Outpatient Clinic which are pertinent to the present appeal. The Board previously remanded this appeal in April 2010 and April 2012 for additional development. The Board notes that not all the requested development was completed prior to the return of the claims file to the Board. As a consequence, another remand is required to ensure compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that compliance by the Board or the RO with remand directives is neither optional nor discretionary, and where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A careful review of the record shows that further development is warranted as the Veteran is entitled to substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The April 2010 and April 2012 Board remands specifically directed the RO to obtain outstanding VA treatment records from the VA Medical Center (VAMC) in Durham, North Carolina. An October 2007 VA examination report indicated that the Veteran received psychiatric outpatient treatment at the Durham VAMC. A June 2009 private psychiatric evaluation noted that the Veteran had been treated at the Durham VAMC for psychotherapy. The treatment notes from the Salisbury VAMC and the Winston-Salem Outpatient Clinic are of record and indicate that the Veteran had treatment at the Durham VAMC. An August 2012 Report of General Information indicated that VA contacted the Veteran. The Veteran indicated that there were no medical treatment records at the Durham VAMC. He further indicated that he had only been to the Salisbury VAMC for VA treatment. While updated VA treatment records from the Salisbury VAMC and Winston-Salem Outpatient Clinic were associated with the claims file subsequent to the April 2012 remand, it is not clear if the Durham VAMC treatment records are available. In August 2012, VA requested these records, but no response is of record. As VA did not receive a negative response regarding the Durham VAMC treatment records and the record indicates there may be additional treatment records available, the Board finds that there has not been substantial compliance with the prior remand directives. A remand is required so that the RO may obtain all available records relevant to the Veteran's claim on appeal and if any of these records are found unavailable, the Veteran can be given a proper notice of the unavailability of his VA treatment records. 38 C.F.R. § 3.159(e) (2012). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take all indicated action to obtain and associated with the record copies all outstanding VA treatment documents referable to the service-connected psychiatric disability . A specific request should be made for treatment records from the Durham VAMC/ or the Durham clinic. If the requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran and his representative so notified. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2012). _________________________________________________ STEPHEN L. WILKINS 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) (2012).