Citation Nr: 1333232	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  11-31 627	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial disability evaluation for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to January 9, 2013, and 70 percent thereafter.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active duty from January 1969 to January 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA).

The RO granted the Veteran service connection for PTSD in December 2010.  This was rated as 30 percent disabling, effective January 21, 2010, the date his claim was received.  The RO subsequently increased the PTSD evaluation to 70 percent disabling, effective January 9, 2013, in a February 2013 rating decision.  This increase during did not constitute a full grant of the benefit sought.  Therefore, the Veteran's claim for an increased evaluation for the service-connected disability remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

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 Veteran was afforded a VA examination in January 2013.  The VA examiner noted under section 2c, "Relevant Mental Health history," of the Clinical Findings section of the examination that the Veteran was treated "several years ago at the Colorado Springs VA Medical Center."  These records are not in the claims file or on Virtual VA (electronic filing system).  They must be obtained and considered, particularly in light of the staged ratings.  Records generated by VA facilities that may impact the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of the claim, regardless of whether they are physically in the claims file.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).


Accordingly, the case is REMANDED for the following action:

1. Obtain the Veteran's complete VA treatment records from the Colorado Springs VA Medical Center, including the records referenced in the January 2013 VA compensation examination.  Put them in the claims file, either the physical claims file or electronic ("Virtual VA") file. 

	If deemed necessary, conduct any other appropriate psychological testing to ascertain the severity of the Veteran's PTSD.

2.  Then readjudicate the claim on its underlying merits in light of this and all other additional evidence. THE RO/AMC WILL SPECIFICALLY CONSIDER WHETHER THE VETERAN'S SERVICE-CONNECTED DISORDERS RENDER HIM ELIGIBLE FOR A TOTAL DISABILILITY EVALUATION BASED ON INDIVIDUAL UNEMPLOYABILITY ("TDIU"); AND IF SO, WHETHER HE SHOULD BE PROVIDED NOTICE UNDER THE VCAA TO SUBSTANTIATE SUCH A CLAIM. 

 If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

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).



_________________________________________________
Vito Clementi
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).