Citation Nr: 1322117 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 04-31 926A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial disability rating greater than 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from January 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. It is noted that, in September 2004, the appellant requested a hearing before a member of the Board. 38 C.F.R. § 20.700(a) (a hearing on appeal will be granted if the appellant or his representative has expressed a desire to appear in person). However, he withdrew this hearing request in correspondence dated April 2009. 38 C.F.R. § 20.702(e) (a request for a hearing may be withdrawn by the appellant at any time before the date of the hearing). Therefore, no hearing is required prior to consideration of the appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. In this case, however, the Veteran has not reported or testified that he cannot work specifically due to his PTSD. Therefore, TDIU claim is not raised by the record in this case. The Virtual VA claims file has been reviewed. This case first reached the Board in December 2009. In a December 2009 decision, the Board remanded the case for further development. After completion of this development by the RO, the case was returned to the Board for further appellate consideration. In a June 2011 decision, the Board denied the increased rating issue on appeal. The Veteran appealed the Board's decision to deny the increased rating issue to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2012 Court Order and Joint Motion for Remand (Joint Motion) filed by the parties, the Court vacated the Board's decision on the increased rating for PTSD issue and remanded it for compliance with specific instructions. Specifically, the Joint Motion directed the Board to consider favorable evidence of record regarding certain psychiatric symptoms and provide adequate reasons or bases for any finding that the Veteran's symptoms do not more closely approximate a disability rating greater than 30 percent for PTSD. See 38 C.F.R. § 4.7 (2012); Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). The Joint Motion also directed the Board to address whether staged ratings are appropriate for different time periods during the pendency of the appeal. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) ("staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."); Fenderson v. West, 12 Vet. App. 119 (1999) (when an initial rating is on appeal, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.). Upon return from the Court, the Board sent a letter to the Veteran in September 2012 informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the RO to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1304 (2012). In response, in November 2012, the Veteran's representative submitted additional private medical evidence with a waiver of RO consideration. In February 2013, the Board again remanded the Veteran's claim for additional development, including obtaining more recent VA treatment records and private treatment records from Kaiser Permanente. After completion of this development by the RO, the case was returned to the Board for further appellate consideration. Unfortunately, the appeal is again 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 remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court has clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In any event, the Court routinely vacates Board decisions based on this situation. Although, regrettably, it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's previous February 2013 remand directives as to the issues on appeal. In this regard, the February 2013 remand directed the RO/AMC to obtain the Veteran's relevant VA treatment records for the period since January 2009. According to the April 2013 supplemental statement of the case, the Veteran's treatment records from the Long Beach, California VA Medical Center, dated January 2009 through February 2013, were reviewed. However, those medical records are neither in Virtual VA nor the paper claims file and therefore, are unavailable for review by the Board. They must be obtained and associated with the Veteran's claims file. See 38 C.F.R. § 3.159(c)(2), (c)(3) (2012). See also Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Board observes that the Veteran was most recently afforded a VA examination in December 2008. As previously discussed, the JMR directed the Board to address whether staged ratings are appropriate for different time periods during the pendency of the appeal. Similarly, the Veteran, through his representative, asserts that his PTSD symptoms are more severe than presently evaluated. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). The Court has also determined that the fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, the Board finds that the Veteran should be afforded a new VA PTSD examination in order to accurately evaluate the current severity of his PTSD. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must secure copies of treatment records of all relevant VA medical treatment, dated from January 2009 through February 2013, from the VA Medical Center (VAMC) in Long Beach, California. These records must be associated with the claims file. 2. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity and manifestations of his service-connected PTSD. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 3. Following the above-directed development for the claim of entitlement to an increased disability rating for PTSD, the RO should re-adjudicate that claim and, if a grant of the benefit is not in order, an SSOC should be issued prior to a return 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). _________________________________________________ H. N. SCHWARTZ 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).