Citation Nr: 1627869 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 10-22 619A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to September 23, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1966 to June 1969. The Veteran died in February 2015 and the appellant is the Veteran's surviving spouse. The appellant has been accepted as a substitute claimant for purposes of processing the claim to completion pursuant to 38 U.S.C.A. § 5121A (West 2014). See May 2015 Letter to Appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The January 2008 rating decision granted entitlement to service connection for PTSD and assigned a 30 percent disability rating, effective March 10, 2005. A March 2009 rating decision increased the assigned disability rating to 100 percent, effective December 11, 2008, with the effective date based on a determination that an increased rating claim was filed on that date. A February 2014 Board decision (addressing an issue phrased as: "[e]ntitlement to an effective date earlier than December 11, 2008 for an increased rating to 100% for service-connected" PTSD), in the portion not disturbed by a subsequent Joint Motion for Remand (JMR) and United States Court of Appeals for Veterans Claims (Court) Order (discussed further below), assigned an effective date of September 23, 2008 for the 100 percent disability rating for PTSD, with the effective date based on, in part, a determination that the January 2008 rating decision was final and an informal increased rating claim was filed on September 23, 2008. The Veteran appealed the Board's decision to the Court. In an August 2014 Order, the Court remanded the case to the Board for action consistent with a July 2014 JMR. In December 2014, the Board found that the January 2008 rating decision was not final, based on a determination that new and material evidence had been submitted within one year of such decision. Based on this finding, the Board found "that the issue on appeal is now understood to arise from the original March 2005 claim and requires consideration of entitlement to a rating in excess of 30 percent at any time prior to September 23, 2008" (emphasis in original). The Board recharacterized the issue on appeal as "[e]ntitlement to a rating in excess of 30 percent for [PTSD] prior to September 23, 2008" and remanded this issue. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Introduction above, in December 2014 the Board, with consideration given to a July 2014 JMR, recharacterized the issue on appeal as, essentially, an increased rating claim for the period prior to September 23, 2008 (as opposed to the earlier effective date claim as the issue was characterized when it was before the Board in February 2014). In light of this recharacterization, the Board determined that remand was warranted to obtain outstanding VA treatment records for the time period that was now on appeal. In addition, the remand directives instructed that the AOJ "review the expanded record and readjudicate the claim on appeal: entitlement to a rating in excess of 30 percent [PTSD] from March 2005 until September 23, 2008." Subsequent to the December 2014 Board remand, the Veteran died in February 2015. In May 2015, the appellant submitted a VA Form 21-0847 (Request for Substitution of Claimant Upon Death of Claimant) and a May 2015 letter informed the appellant that she had been accepted as a substitute in the Veteran's appeal. The case was subsequently returned to the Board in June 2015. Upon review, the Board concludes that the December 2014 Board remand directives were not substantially complied with. Specifically, the requested VA treatment records were not obtained and the AOJ did not readjudicate the issue of entitlement to a disability rating in excess of 30 percent for PTSD prior to September 23, 2008 (no Rating Decision or Supplemental Statement of the Case was issued). The Board, therefore, concludes that remand is required to ensure substantial compliance with the December 2014 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board notes that the appellant's representative's May 2016 Post-Remand Brief stated that "the appropriate remedy for this appeal is remand for compliance with the Board directives," with prior discussion of the December 2014 Board remand. Accordingly, the case is REMANDED for the following action: 1. Obtain for the record copies of all VA records (those not already associated with the claims file) pertaining to treatment the Veteran received for psychiatric/mental health concerns, particularly those pertaining to PTSD treatment for the period from November 2007 through September 2008 (including the multiple types of group therapy sessions described in the September 2008 letter from a VA psychologist). 2. Thereafter, review the expanded record and readjudicate the claim on appeal: entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from March 2005 until September 23, 2008. The claim is now understood to arise from the Veteran's original March 2005 PTSD service connection claim. If any element of the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case (SSOC), and afford the appellant and her representative the opportunity to respond before the case is returned to the Board for further appellate review. As this readjudication has been made necessary by the Board's prior determination that the January 2008 rating decision (which provided the initial rating assignment) has not become final, the initial rating determination remains pending and the complete record must be considered and addressed in determining whether a rating in excess of 30 percent is warranted prior to September 23, 2008. 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 2014). _________________________________________________ Bethany L. Buck 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) (2016).