Citation Nr: 1342947 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-32 419A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE What evaluation is warranted for posttraumatic stress disorder (formerly evaluated as psychoneurosis/anxiety) from May 2, 1948? REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to October 1945. For reasons which will become apparent, the issue on appeal, which was originally characterized as entitlement to an effective date earlier than June 17, 2008 for an increased evaluation of 50 percent for posttraumatic stress disorder, has been recharacterized as noted on the title page of this decision. In that regard, this case originally came before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO granted a 50 percent evaluation for posttraumatic stress disorder (previously evaluated as psychoneurosis/anxiety) effective from June 17, 2008, the date of receipt of the Veteran's claim for increase. The case then subsequently came to the Board from the VARO in Roanoke, Virginia. In a decision of November 2011, the Board denied entitlement to an effective date earlier than June 17, 2008 for the assignment of a 50 percent evaluation for posttraumatic stress disorder. That determination was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2012, the parties entered into a Joint Motion for Remand to the Board, which was implemented by the Court that same month. In a decision of October 2012, the Board once again denied entitlement to an effective date earlier than June 17, 2008 for the assignment of a 50 percent evaluation for posttraumatic stress disorder. However, in a Memorandum Decision of May 2013, the Court reversed the Board's October 2012 decision, and, in so doing, remanded the case to the Board for action consistent with that Memorandum Decision. The case is now, once more, before the Board for appellate review. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2013). Finally, for the reasons noted below, this appeal is once again being REMANDED to the RO. VA will notify you if further action is required on your part. REMAND A review of the record in this case discloses that, in a rating decision of January 1947, the RO granted service connection (and a 50 percent evaluation) for combat fatigue and psychoneurosis manifested by dizzy spells, headaches, tension, rapid heart action, and insomnia, effective from October 5, 1945, the date following the Veteran's discharge from service. Following a VA psychiatric examination in January 1948 which reportedly showed improvement in the Veteran's nervous condition, the RO, in a rating decision of March 2, 1948, reduced the Veteran's previously-assigned 50 percent evaluation for psychoneurosis/anxiety to 30 percent, effective from May 2, 1948. The Veteran was informed of that determination that same month, and advised that, unless he submitted additional evidence of a medical nature within 60 days showing that his psychiatric condition had not improved, his 50 percent rating would, in fact, be reduced to 30 percent. In correspondence of May 1948, the Veteran indicated that, while he first believed that the reduction in his "pension" was justified, he now believed that the RO had not been justified in reducing his rating. In correspondence of late June 1948, the RO responded to the Veteran's correspondence, advising him that reconsideration of his claim would be accorded in the event that he submitted medical evidence indicating the present extent of his disability, and that, upon receipt of such evidence, appropriate action would be taken, with the Veteran being informed of any determination made. Finally, the Veteran was advised that, should he wish to appeal the RO's determination, he should inform the RO, at which time he would be furnished with the appropriate form for that purpose. Pertinent evidence of record is to the effect that the Veteran failed to respond to that correspondence from the RO. In a rating decision of June 1950, and based in large part on findings noted at the time of a VA psychiatric examination in June 1950, the Veteran's previously-assigned 30 percent evaluation for his service-connected psychoneurosis/anxiety was reduced to 10 percent, effective from August 19, 1950. The Veteran was informed of that determination in correspondence dated that same month, and advised that, even if he had no further evidence to submit, but had substantial reason to believe that the RO's decision was not in accordance with the law and facts in his case, he could appeal the determination to the Administrator of Veterans Affairs at any time within the one-year time period from the date of the June 1950 letter. The Veteran was further advised that, should he wish to appeal, he should inform the RO, at which time he would be furnished the appropriate form for that purpose. Once again, the Veteran failed to respond to the RO's correspondence. On June 17, 2008, there was received the Veteran's claim for an increased evaluation for his service-connected psychiatric disability. Following a VA psychiatric examination in August 2008, the RO, in a rating decision of November 2008, awarded a 50 percent evaluation for what was then determined to be posttraumatic stress disorder, effective from June 17, 2008, the date of receipt of the Veteran's claim for increase. The Veteran subsequently voiced his disagreement with the assignment of the effective date for the award of a 50 percent evaluation, arguing that the effective date should have gone back to May 1948. At the time of the aforementioned Board decisions in November 2011 and October 2012, the Board, in pertinent part, concluded that the Veteran's correspondence in May 1948 did not constitute a valid "appeal" as such an appeal was defined by regulation at that time, and that, as a result, upon the Veteran's failure to respond to the RO's request for clarification, that the March 2, 1948 rating decision reducing the Veteran's previously-assigned 50 percent evaluation to 30 percent became final. However, the Court, in the aforementioned Memorandum Decision of May 2013, determined that the Veteran's May 1948 letter did, in fact, constitute a valid "appeal" of his reduction in rating, with the result that the Veteran's "appeal" has remained open since that time. According to the Court, this raises the question of an appropriate effective date for the Veteran's increased disability rating, to include whether staged ratings maybe appropriate. Significantly, to date, the only question addressed on appellate review has been that of an earlier effective date for the award of a 50 percent evaluation for the Veteran's service-connected posttraumatic stress disorder. No adjudication on the merits has yet taken place, either by the Board or the RO, on the issue of the appropriate schedular rating to be assigned the Veteran's service-connected psychiatric disability during the period from May 2, 1948 up to the present, which now essentially is in issue. Such an adjudication is necessary prior to any determination by the Board of the Veteran's current claim. Furthermore, pertinent evidence of record is to the effect that, during the period from June to August 1945, the Veteran was apparently hospitalized at the St. Albans Naval Hospital in Long Island, New York, for treatment of various psychiatric symptomatology. While there is currently of record a Report of Medical Survey dating from that time period, it is unclear whether all of the Veteran's records of inservice hospitalization are at this time a part of his claims folder. Moreover, while during the course of a VA psychiatric examination in August 2008, it was noted that the Veteran was "supported by funding from Social Security and his VA disability funding," it is at this time not entirely clear whether the "Social Security" benefits referenced were "retirement" benefits or "disability" benefits. Significantly, where VA has actual notice that a Veteran is receiving disability benefits from the Social Security Administration, and such information is arguably relevant, the duty to assist requires VA to obtain a copy of the decision and any supporting medical records upon which the award was based. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Finally, appellant should be informed that records of any psychiatric treatment rendered since 1948 could now be pertinent to the appeal. He should be asked to report any treatment that he had, and attempts to obtain records should be undertaken. Accordingly, in light of the aforementioned, the case is REMANDED to the RO for the following actions: 1. The RO should contact the appropriate service department and/or record storage facility, to include the National Personnel Records Center, with a request that they provide copies of any and all service treatment records which are not at this time a part of the Veteran's claims folder, to include, in particular, any records of inservice hospitalization during the period from June to August 1945. All such records, once obtained, should be made a part of the Veteran's claims folder. Should such records prove unavailable, the RO should specifically so state. 2. The RO should then contact the Social Security Administration, with a request that they provide a copy of the decision concerning any claim for Social Security disability benefits. Any medical records utilized in the award of Social Security benefits should likewise be requested. Once obtained, all such information and records should be made a part of the Veteran's claims folder. 3. Contact the Veteran to ascertain whether there was any psychiatric treatment from 1948 to the present. If so, attempts should be made to obtain records. His assistance in obtaining records should be requested as needed. All attempts made to obtain records should be documented in the claims folder. 4. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to August 2008, the date of the most recent VA examination of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to secure such records must be documented in the claims file. If the RO cannot obtain such records, the RO must specifically document the attempts that were made to locate them, and explain why further attempts to locate or obtain any government records would be futile. In addition, the Veteran and his attorney should be informed of any such problem. 5. The RO should then adjudicate the recharacterized issue of what evaluation is warranted for posttraumatic stress disorder (formerly evaluated as psychoneurosis/anxiety) from May 2, 1948 to June 17, 2008, the date of the assignment of the Veteran's current 50 percent evaluation. Such adjudication should specifically take into account the Veteran's potential entitlement to "staged" ratings for his service-connected psychiatric disability. Should the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of an SSOC in September 2011. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ MICHAEL D. LYON 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).