Citation Nr: 1322891 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-20 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol and polysubstance abuse in full sustained remission, prior to October 21, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied a rating in excess of 30 percent for the service-connected PTSD. The VA RO in Los Angeles, California, currently has jurisdiction of the Veteran's claims file. During the course of the appeal, in a December 2011 rating decision, the RO assigned a 100 percent disability rating for the service-connected psychiatric disability, effective October 21, 2010, and reclassified the disability as PTSD with major depressive disorder and alcohol and polysubstance abuse in full sustained remission. As will be discussed below, the appeal period encompasses time prior to the grant of the maximum 100 percent rating on October 21, 2010. Therefore, the December 2011 rating is not a complete grant of the benefit sought on appeal, and the Veteran has not indicated that this grant of this benefit satisfied his appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue remains in appellate status. In the July 2013 appellate brief presentation, the representative stated that the issue is entitlement to an increased rating for PTSD for the period from June 8, 2004, to October 20, 2010. In a January 2005 rating decision, the VA RO in Los Angeles, California, granted service connection for PTSD effective June 8, 2004, and assigned a 30 percent disability rating effective that same date. Therefore, the representative is arguing that the appeal before the Board is an appeal of the January 2005 rating decision assigning the initial disability rating of 30 percent for the service-connected psychiatric disability following the grant of service connection for that disorder. See Fenderson v. West, 12 Vet. App. 119 (1999). For the reasons below, the Board finds that the representative's characterization of the appeal is incorrect. In September 2005, the Veteran filed a timely notice of disagreement appealing the initial assignment of a 30 percent disability rating for PTSD. The RO issued a statement of the case on the initial assignment of a 30 percent disability rating in January 2007. By law, the Veteran had one year from the rating decision, or 60 days after the statement of the case was issued, whichever is later, to perfect his appeal. Therefore, he had until March 2007 to do so. The Veteran did not submit a VA Form 9 until May 14, 2007. In a May 22, 2007, determination, the RO held that the Veteran did not timely file a substantive appeal as to the January 2005 rating decision assigning the initial 30 percent disability rating for PTSD. The Veteran did not appeal that determination. Thus, the January 2005 rating decision assigning the initial 30 percent disability rating is final. 38 U.S.C.A. § 7105(c) (West 2002); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2002). Accordingly, as noted above, the appeal is from the February 2008 rating decision. In May 2012, the Veteran withdrew his request for a Board hearing. Therefore, no further development as to a hearing is necessary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The date of the claim on appeal is May 14, 2007, the date of receipt of the untimely VA Form 9. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Thus, any treatment records pertaining to the service-connected psychiatric disability from May 2006 to October 2010 are relevant to this claim. VA treatment records dated in September 2007 show that the Veteran had recently started receiving treatment at the Sepulveda Vet Center and that he had previously received treatment at the East Los Angeles Vet Center. All records from the Sepulveda Vet Center from May 2006 to October 2010 and from the East Los Angeles Vet Center from May 2006 to October 2010 must be obtained. October 2008 and September 2010 statements from Dr. I. B. of Los Angeles, California, reflect that he has treated the Veteran for his psychiatric disability. All records from this clinical psychologist of Los Angeles, California, from May 2006 to October 2010, must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all records from the Sepulveda Vet Center from May 2006 to October 2010, the East Los Angeles Vet Center from May 2006 to October 2010, and Dr. I.B. of Los Angeles, California, from May 2006 to October 2010. See statements from the psychologist in October 2008 and September 2010 for contact information. 2. Thereafter, readjudicate the issue on appeal. If the benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). _________________________________________________ Bethany L. Buck 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).