Citation Nr: 1332722 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-01 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD), in excess of 30 percent from May 22, 2006 to April 15, 2012 and in excess of 70 percent since April 16, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active military service from May 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision in which the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine granted service connection for PTSD and evaluated the disability as noncompensably disabling effective May 22, 2006. In a letter dated two days later, the RO in Detroit, Michigan informed the Veteran of that determination. Due to the location of the Veteran's residence, the jurisdiction of his appeal remains with the Detroit RO. The Veteran appealed the initial evaluation of this now service-connected disability. By rating decision issued in November 2007, the Detroit RO awarded a 30 percent rating, effective from May 22, 2006, for the Veteran's PTSD. This case was then remanded by the Board in November 2011. After completing the development requested therein, the Appeals Management Center (AMC) in Washington, D.C., by an October 2012 rating action, awarded a 70 percent rating for the Veteran's PTSD from April 16, 2012. Despite the grants of increased disability ratings for the Veteran's PTSD, he has not been awarded the highest possible evaluation available. As a result, he is presumed to be seeking the maximum possible evaluation and the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). 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 Review of the record reveals that the Veteran was issued a Supplemental Statement of the Case (SSOC) in August 2012 which lists VA medical records, dated from October 26, 2006 to April 16, 2012. However, these records are not contained in the physical claim file, or for that matter in Virtual VA or the Veterans Benefits Management System (VBMS), and thus they are not currently available for the Board's review. The Board cannot adjudicate the claim based on an incomplete record. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record.) A remand is thus warranted so that these relevant medical records may be obtained for inclusion in the evidence. Jolley v. Derwinski, 1 Vet. App. 37, 40 (1990); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating, at bare minimum, VA has constructive, if not actual, notice and possession of these additional records since they are VA generated and maintained, even if not physically in the file). The Board sincerely regrets the additional delay and is cognizant of the fact that this claim has already been remanded once. Therefore, the Board wishes to assure the Veteran that it would not be remanding this claim again unless it was essential for a full and fair adjudication. See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (where the record before the Board is inadequate, a Remand is mandatory rather than permissive.) Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all clinical records that are not already in the claims file. The Board is particularly interested in treatment reports from the VAMC in Detroit, Michigan dated from October 26, 2006 to April 16, 2012, as listed in the most recent SSOC dated in August 2012. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. All such available documents should be associated with the Veteran's claims folder, Virtual VA folder, or VBMS folder, as appropriate. 2. Thereafter, readjudicate the increased rating claim remaining on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an SSOC and give them an appropriate time period in which to respond. The claim should then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).