Citation Nr: 1326789 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-37 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial compensable evaluation for post traumatic stress disorder (PTSD) for the period prior to October 2, 2001. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to June 1957. This matter come before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Phoenix. In that decision, the RO retroactively granted service connection for PTSD and assigned an initial noncompensable disability rating, effective June 18, 1957 and via a staged rating, continued a previously adjudicated 50 percent rating effective October 2, 2001 and a 70 percent rating effective July 30, 2002. In this grant, the November 2007 rating determined that a June 1958 rating decision and subsequent decisions had been clearly and unmistakably erroneous (CUE) by failing to grant service connection for PTSD with dysthymia (previously diagnosed as psycho-neurotic reaction, post traumatic. This CUE rating determination resolved in full the Veteran's appeal of entitlement to an earlier effective date for entitlement to service connection for PTSD which had been assigned as October 2, 2001 in a July 2002 decision that had granted service connection for PTSD. The Veteran's appeal of the October 2, 2001 effective date for service connection had argued that the effective date for service connection for PTSD should go back to June 2, 1958. The effective date assigned effective June 18, 1957 predates the requested effective date for the grant of service connection for PTSD, thus resolving this issue in full. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). The Veteran did not appeal the effective date assigned for entitlement to service connection after being notified by the November 2007 that this matter was being granted in full. Thus this effective date matter is not before us. In this instance, the Veteran is shown to have appealed the initial noncompensable rating assigned prior to October 2, 2001 for the PTSD. He has clarified the appellate issue via a December 2009 written statement following a less specifically worded notice of disagreement submitted in November 2009. 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). 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 Board finds that additional development is warranted prior to adjudicating this matter. It appears that there may potentially be outstanding records in VA possession that may be pertinent to outcome of this matter. In this matter, the issue of initial entitlement to a compensable rating for PTSD from June 18, 1957 to October 2, 2001, is complicated by the fact that the PTSD, which stems from an incident in service where the Veteran was stabbed in his stomach, was originally classified as a psychoneurotic reaction to this injury, with symptoms that included apparent GI complaints of "nervous stomach" as reported in a February 1963 VA examination. While the current evidence suggests that he received treatment for psychiatric problems on or after October 2, 2001 and the Veteran has indicated in his November 2008 Notice of Disagreement that earlier records were either "lost, misplaced or archived in undetermined places" the Board finds that an attempt should be made to ensure all potentially pertinent records be associated with the claims file. Of note, a statement from an individual, Rev R.P., MMP, Pastor, submitted in conjunction with the Veteran's September 2008 Notice of Disagreement, describes knowing the Veteran very well for over 40 years, and described the Veteran moved to Washington State after living in Portland around 1980, and while in Washington moved to several cities. Rev R.P. stated that several years later, the Veteran began receiving treatment for residuals of his injuries at the VA in Tacoma. While the pastor did not indicate what year such treatment took place, the wording of the description suggests that the records could potentially predate October 2, 2001. Currently the VA records from the VA Puget Sound Health system are dated between 2001 and 2003. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Additionally, the Board finds that the Veteran should be provided with additional opportunity to submit evidence showing that his PTSD symptoms warranted a compensable rating prior to October 2, 2001. While the evidence thus far has indicated the Veteran received no psychiatric treatment prior to 2001, given the apparent somatic nature of the psychiatric disorder (with GI manifestations), he should be provided an opportunity to submit potentially pertinent evidence, to include additional treatment for GI or other potential physical manifestations of his psychiatric disorder. The RO is noted in its November 2007 rating that granted the retroactive service connection for the PTSD dating back to June 18, 1957 to have told the Veteran that if additional evidence was obtained showing compensable symptoms from June 1957, it would reconsider granting a higher evaluation prior to October 2, 2001. Further adjudications pointed out that a compensable evaluation under the applicable Diagnostic Codes for psychiatric disorders in effect since October 1996 includes consideration of the need for continuous medications. The Board notes that when the Veteran underwent VA examination in June 1958 for a psychiatric disorder, it was suggested that he would benefit from treatment with newer drugs particularly benzothiazines. If the Veteran were able to obtain evidence that he was prescribed psychotropic medications (often commonly referred to as "nerve pills") by medical professionals, including non-psychiatrists prior to October 2, 2001, this could prove significant in determining whether a compensable rating is warranted prior to that date. 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) (2012). Expedited handling is requested.) 1. The AMC should contact the Veteran and ask that he identify all sources of treatment for any manifestations of his PTSD from June 18, 1957 to October 2, 2001, to include physical manifestations such as gastrointestinal problems, and any treatment with medication for psychiatric or "nervous" issues he may have, that are not yet associated with the claims folder. He should also clarify whether he had treatment with the VA including in Tacoma, Washington, and from any other sufficiently identified VA facility during any period prior to October 2, 2001. The Veteran should be asked to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. Copies of the medical records from all sources (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. If requests for any private or non-VA government treatment records are not successful, the AMC should inform the Veteran of the non-response so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. All efforts to obtain any identified VA records must be documented in the claims file. Such efforts should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile38 C.F.R. § 3.159 (2012). 2. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case that adjudicates this matter with consideration of all the applicable criteria and revisions therein for adjudicating PTSD from the pendency of this claim in June 18, 1957 to October 2, 2001. Thereafter, the case should be returned to the Board, if in order. The appellant 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). _________________________________________________ J. A. MARKEY 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).