Citation Nr: 1341103 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-26 670 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial rating for service-connected posttraumatic stress disorder (PTSD), rated as 50 percent disabling prior to May 10, 2013, and as 70 percent disabling from that date. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran had active military service from September 1968 to June 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the RO in St. Petersburg, Florida that in pertinent part, granted service connection and a 30 percent rating for PTSD, effective December 12, 2008. The Veteran appealed for a higher initial rating for PTSD, contending that a higher 50 percent rating was warranted. Fenderson v. West, 12 Vet. App. 119 (1999). In a November 2009 RO decision by a Decision Review Officer (DRO), a higher initial 50 percent rating was granted for PTSD, effective December 12, 2008. In response, the Veteran contended that an even higher 70 percent rating was warranted. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). The Veteran testified before the Board at a May 2012 hearing conducted at the RO (i.e., a Travel Board hearing). A transcript of the hearing is of record. In April 2013, the Board remanded this appeal to the Appeals Management Center (AMC) for additional development, including a VA examination. In a July 2013 rating decision, the AMC granted a higher 70 percent rating for PTSD, effective May 10, 2013, the date of a VA compensation examination. Thus, staged ratings have been assigned for PTSD, as this disability was rated as 50 percent disabling prior to May 10, 2013, and as 70 percent disabling from that date. In a July 2013 written statement, the Veteran said that with respect to the July 2013 rating decision, "I request to withdraw remaining appeal on condition P&T status is awarded to existing rating decision listed above." In a September 2013 written brief, the Veteran's representative contended that a 100 percent schedular rating should be assigned for PTSD, and that a total disability compensation rating based on individual unemployability (TDIU) should be granted, along with a finding of permanent and total disability. The case was subsequently returned to the Board. The record currently before the Board consists of electronic Virtual VA and VBMS paperless claims files. While this appeal has been pending, the St. Petersburg RO has been adjudicating other claims, and additional evidence has been added to the Virtual VA and VBMS electronic claims files. In a June 2010 rating decision, the RO granted service connection and a 100 percent schedular rating for prostate cancer, effective June 25, 2010. In a November 2013 letter, the Veteran's representative noted the November 2013 award of entitlement to a TDIU and the RO's finding that the Veteran is permanently and totally disabled, and stated that since the RO granted these claims, the claims for "IU and Chapter 35 benefits have been resolved, so that the Board need not concern itself with these two issues." He indicated that the Veteran still wants to continue his appeal for a higher schedular rating for PTSD. There is another issue which is not before the Board. At his Board hearing, the Veteran raised, for the first time, an earlier effective date claim for the award of service connection for PTSD. In this regard, the Board observes that VA statutes and regulations do not provide for a "freestanding claim" for an earlier effective date to be raised at any time in the future. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ) in a rating decision, although the issue was briefly discussed in the July 2013 supplemental statement of the case. See 38 C.F.R. § 19.31 ("In no case will a Supplemental Statement of the Case be used to announce decisions by the AOJ on issues not previously addressed in the Statement of the Case....") Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. This 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 While the Board's prior remand was pending at the AMC, the RO has been conducting additional development, including obtaining VA medical opinions and medical records. Some of this evidence, particularly a July 16, 2013 VA medical opinion by a VA psychiatrist, is relevant to the issue of entitlement to a higher initial rating for PTSD. However, this evidence was associated with the Virtual VA paperless claims file in November 2013, after the issuance of the most recent supplemental statement of the case on July 5, 2013, and thus has not yet been reviewed by the AOJ in the context of the instant appeal, with issuance of a supplemental statement of the case. Such must be done prior to appellate review in order to provide due process to the Veteran. See 38 C.F.R. §§ 19.31, 19.37(a) (2013). Moreover, these additional VA medical records indicate that the Veteran receives ongoing treatment for PTSD at the VA mental health clinic. It thus appears that additional relevant VA medical records may exist. Ongoing relevant medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have evaluated or treated him for PTSD or a psychiatric disorder since December 2008. After obtaining any necessary authorization, obtain all identified and relevant records that are not duplicates of those already in the claims file, particularly VA medical records dated since July 1, 2013. 2. Then, the RO/AMC should readjudicate the appeal for a higher initial rating for PTSD, with consideration of all of the evidence received since the July 2013 supplemental statement of the case. If a higher rating is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give him an opportunity to respond, 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 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. 2013). _________________________________________________ K. PARAKKAL 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) (2013).