Citation Nr: 1328108 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 97-25 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), from November 7, 1996. ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active service from November 1993 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for PTSD, and assigned an initial evaluation of 10 percent, effective February 17, 1996. In a June 2000 decision, the Board granted a 30 percent rating for PTSD prior to June 11, 1999 and denied an initial staged rating in excess of 10 percent for PTSD from June 11, 1999. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2001, the Court granted the Secretary's motion and vacated the Board's decision. In a decision dated in June 2002, in pertinent part, the Board denied an initial rating in excess of 30 percent for PTSD prior to June 11, 1999 and an initial rating in excess of 10 percent for PTSD from June 11, 1999. The Veteran appealed that decision to the Court as well. In June 2003, the Court issued another Order, which granted a joint motion of the parties, dated that same month, to vacate and remand the Board's June 2002 decision. Pursuant to the June 2003 Joint Motion and Court Order, the Board remanded the Veteran's claim on appeal in June 2004 to the RO. In a September 2002 rating decision, the RO had granted a temporary total evaluation pursuant to 38 C.F.R. § 4.29, based on a period of VA hospitalization for PTSD, for the period from February 22, 1996, through June 30, 1996. In a January 2005 supplemental statement of the case/rating decision, the RO increased the Veteran's initial rating for PTSD from 10 to 30 percent, effective June 11, 1999. In a June 2005 decision, the Board granted an initial rating of 50 percent prior to November 7, 1996, and denied an initial rating in excess of 30 percent for the period from November 7, 1996, forward. In a rating decision dated in November 2005, the RO implemented the June 2005 Board decision and assigned ratings for service-connected PTSD of 50 percent from February 17, 1996; a temporary total rating of 100 percent based on a period of hospitalization for service-connected PTSD from February 22, 1996, through June 30, 1996; a rating of 50 percent from July 1, 1996, through November 6, 1996; and a rating of 30 percent from November 7, 1996. In a September 2007 memorandum decision, the Court vacated the Board's June 2005 decision. The appellant's claims were remanded by the Board in July 2008. In a March 2009 rating decision, the RO in Huntington, West Virginia extended the temporary total evaluation assigned under 38 C.F.R. § 4.29 from February 22, 1996 through September 30, 1996. The 50 percent evaluation was continued from February 17, 1996 through February 21, 1996, and from October 1, 1996 through November 6, 1996. The 30 percent evaluation was continued from November 7, 1996. In a March 2010 decision, the Board, in pertinent part, granted a staged initial evaluation of 100 percent for PTSD from February 17, 1996, through February 21, 1996; denied a staged initial evaluation in excess of 50 percent for PTSD from October 1, 1996, through November 6, 1996; and denied a staged initial evaluation in excess of 30 percent for PTSD from November 7, 1996. The Veteran appealed the issue of entitlement to a staged initial evaluation in excess of 30 percent for PTSD from November 7, 1996, to the Court. In September 2010, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. In April 2012, the Board remanded the appeal to the agency of original jurisdiction (AOJ), and it now returns to the Board for appellate review. In the September 2010 Joint Motion, the parties noted that the issue of entitlement to service connection for a somatization disorder manifested by stomach symptoms, to include as secondary to PTSD, had been raised by the record. This issue was referred to the RO in the April 2012 Board remand and denied by the RO in a May 2013 rating decision. No appeal of this decision is of record; therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, the Board's review of the record since the April 2012 remand reveals that another remand is necessary. The purpose of that remand was to obtain additional VA treatment records dated from September 2008 to the present and to schedule a VA examination to assess the current nature and severity of the Veteran's service-connected PTSD. VA examinations were scheduled as directed, but the VA treatment records were not associated with the claims file. The May 2013 supplemental statement of the case states that VA treatment records were searched and no treatment for PTSD was found and that VA treatment records for the period from June 5, 1996 to February 21, 2013 were reviewed electronically and selected excerpts were added to the claims file. However, the electronic review of VA treatment records by the RO does not satisfy the Board's April 2012 remand order that all of the Veteran's VA treatment records from September 2008 were to added the claims file unless unavailable. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Board appreciates the AOJ's efforts in assessing the records for relevance, the complete records must also be available for review so the Board may make that determination directly. Therefore, the Board finds that another remand is required so that the Veteran's VA treatment records from September 2008 to the present may be added to the claims file in their entirety. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file (Virtual VA electronic file or paper copy) all VA treatment notes for the Veteran dated from September 2008 to the present. All requests and responses, positive and negative, must be documented in the claims file. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, the Veteran will be provided a supplemental statement of the case and an opportunity to respond in accordance with applicable statutes and regulations. The case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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). _________________________________________________ U. R. POWELL 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).