Citation Nr: 1514431 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 13-13 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from January 1968 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO continued the Veteran's evaluation of 30 percent for PTSD. In his April 2013 VA Form 9, Substantive Appeal, the Veteran requested a Board hearing to be held at the RO. In an August 2014 correspondence, the RO notified the Veteran that a Board hearing was scheduled for a date in September 2014. The Veteran failed to appear for this hearing. As the Veteran has not requested that the Board hearing be rescheduled, this hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d) (2014). The Board has reviewed the Veteran's physical claims files and the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). The file contains a March 2014 notice of disagreement concerning issues of service connection for a cerebrovascular accident, diabetes mellitus, type II, throat cancer, heart problems, and for muscles spasms. However, the Board finds that, due to significant distinguishing features, a remand for issuance of a statement of the case, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), is not warranted. In Manlincon, the RO failed to construe a communication as a notice of disagreement with respect to an issue denied in the same rating decision as the issue developed for appeal. Subsequent development of the appeal had continued to ignore the notice of disagreement. In contrast, in the instant case, the claim was filed several years after the claim resulting in the appeal currently before the Board, and, more importantly, the RO has taken appropriate action on the March 2014 notice of disagreement. The RO has communicated with the Veteran regarding his March 2014 notice of disagreement. The RO also sent the Veteran a letter which described the Decision Review Officer (DRO) process (the process elected by the Veteran) of adjudicating an appeal. A decision by a DRO is scheduled to be issued shortly. It would be premature for the Board to accept jurisdiction simply to remand for a statement of the case before all RO actions are completed in preparation for said statement of the case. This is especially true in a case such as this where, unlike in Manlincon, the RO is appropriately developing the case. Such a remand would also likely result in further delay in the development of the appeal currently before the Board. Hence, a remand for the RO to accomplish actions which are already in process is not warranted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Subsequent to the RO's issuance of a March 2013 Statement of the Case (SOC) addressing the issue of an increased rating for PTSD and prior to certification of the appeal and transfer of the claims file to the Board in October 2014, the RO received additional evidence in January 2014. The evidence consists of VA treatment records that discuss the Veteran's psychiatric symptoms and treatment related thereto. Thus, the records are relevant to the Veteran's claim for an increased rating for PTSD. In situations like this, when the additional evidence is relevant and not duplicative, the RO/AMC must furnish a supplemental statement of the case as provided in 38 C.F.R. § 19.31. In this regard, the waiver process of 38 C.F.R. § 20.1304(c) applies only to evidence submitted following certification of the appeal and transfer of records to the Board. There is no similar waiver process in the regulations for evidence received prior to certification and transfer of records to the Board. Thus, the Veteran's claim must be remanded for RO/AMC consideration of the evidence added to the record since the March 2013 SOC and issuance of a supplemental SOC (SSOC) in compliance with 38 C.F.R. § 19.31. Accordingly, the case is REMANDED for the following action: Readjudicate the issue on appeal with consideration of all evidence obtained since the issuance of the SOC in March 2013. Specifically, the RO received records from the VA medical center in Alexandria in January 2014. If the benefit sought on appeal remains denied, the Veteran and should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).