Citation Nr: 1113060 Decision Date: 04/01/11 Archive Date: 04/13/11 DOCKET NO. 04-38 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for post-operative medial meniscectomy of the left knee with synovitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was scheduled for a Travel Board hearing with a Veterans Law Judge in July 2007 but failed to report. It is noted that the Veteran failed to attend his hearing because he was incarcerated. As he remains incarcerated and unavailable for a hearing, the Board will proceed with appellate review at this time. This matter was previously before the Board in September 2007 and June 2010 when it was remanded for further development on both occasions. A December 2010 supplemental statement of the case (SSOC) denied the Veteran's claim for an increased rating for his left knee disability, currently evaluated as 10 percent disabling. The case has since been returned to the Board for further appellate consideration. For the reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND Although further delay is regrettable, the Board observes that additional development is required prior to adjudicating the Veteran's claim for an increased rating for post-operative medial meniscectomy of the left knee with synovitis, currently evaluated as 10 percent disabling. The Board notes that, since the RO issued the most recent statement of the case in December 2010, additional relevant evidence has been associated with the claims file that was received on March 1, 2011, to include two letters from the Veteran. However, no waiver of initial RO review has been submitted; therefore, on remand, the RO/AMC must consider this new evidence in the first instance with respect to the claim on appeal. See 38 C.F.R. § 20.1304 (2010). In addition, according to the Board's June 2010 remand instructions, the Veteran's treatment records from the Graceville Correctional Institute in Graceville, Florida were to be obtained and associated with the claims file. The record indicates that in August 2010, the RO requested all treatment records, x-rays, and hospital summaries, findings, and/or diagnoses pertaining to the Veteran's post-operative medial meniscectomy of the left knee from the Graceville Correctional Institute. A DC4-711B, Florida Department of Corrections Consent and Authorization form was enclosed with the August 2010 request. In September 2010, the RO documented further attempts to obtain such records. The RO noted that personnel from the Graceville Correction Institute stated that only the last two years of medical records were kept at the facility (the Board notes that these were the only records requested according to the RO's August 2010 records request), and any records older than 2 years were sent to the Institution's warehouse. Upon speaking with the Institute's warehouse, the RO was told that the warehouse did not have a consent form to release such records. The RO noted that personnel from the Graceville Correctional Institute stated that the RO needed to speak with Ms. B. The RO left its contact information but further correspondence from Ms. B of the Graceville Correctional Institute was never received. In October 2010, the RO further noted that contact was made with R at the Graceville Correctional Institute who stated that the records requested were sent one week prior. In October 2010, the Veteran submitted documentation of a June 2010 grievance that he filed with the Graceville Correctional Institute in attempts to assure that his medical treatment records from the Institute, dated 2008 through 2010, were sent to the St. Petersburg RO. The Correctional Institute's August 2010 response to the Veteran's grievance stated such records were sent to J.W. from the Department of Veterans Affairs, who stated that all information needed was received. Research indicates that the J.W. individual referred to in the Correctional Institute's response to the Veteran's grievance is located at the St. Petersburg RO. However, the Board notes that the only Correctional Institute treatment records associated with the claims file are dated July 1996 through December 2008. As such, the records requested by the RO in its August 2010 records request still have not been associated with the claims file as directed by the Board's June 2010 remand instructions. The Court has held that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further notes that the Veteran's continued correspondence has asserted that he has received medical treatment for his left knee at the Graceville Correctional Institute several times since the latest December 2008 medical treatment record in the claims file. As such, those treatment records must be obtained upon remand and associated with the claims file. In addition, in December 2010, a VA examiner reviewed the Veteran's claims file and was asked to evaluate the current level of disability of the Veteran's left knee. However, the examiner noted that, as in the past, a VA examination was not possible given a conflict between the Florida Department of Corrections policies that: (1) mechanical restraints on an incarcerated individual must remain in place, and; (2) officers do carry weapons and must remain with the incarcerated individual during exam, and VA policy NF/SG VHA Memo 136-20 that mechanical restraints must be removed from the forensic patient upon entry into the facility. In addition, the VA examiner further confirmed that no new medical treatment records from the Florida Department of Corrections have been associated with the claims file. Consequently, the examiner stated that it would be speculative to report the Veterans current level of disability for his medial meniscectomy left knee with synovitis. Accordingly, the case is REMANDED for the following action: 1. RO/AMC should check with J.W. of the St. Petersburg RO to see whether or not the Veteran's treatment records from the Graceville Correctional Institute dated from 2008 through 2010 have been received. If such records were received, such records should be associated with the claims file. 2. If it is determined that the treatment records pertaining to the service-connected left knee disability have not been received by the St. Petersburg RO, then the Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal dating from December 2008 through March 2011. After the Veteran has signed the appropriate releases, to include a release for the Florida Department of Corrections Medical Records Warehouse for any medical records dated two years and older, those records not already associated with the claims file should be obtained and associated with the claims folder. Specifically, copies of the records of treatment received by the Veteran for the service-connected left knee condition since December 2008 from the Graceville Correctional Institute in Graceville, Florida should be requested. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the claims file. The Veteran is to be notified of unsuccessful efforts in this regard in order to allow him the opportunity to obtain and submit those records for VA review. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2010). _________________________________________________ WAYNE M. BRAEUER 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) (2010).