Citation Nr: 0119044 Decision Date: 07/20/01 Archive Date: 07/24/01 DOCKET NO. 94-38 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hemorrhoids. 2. Entitlement to service connection for hypertension based on the theory of aggravation of a pre-existing condition during active service from February to December 1991. 3. Entitlement to service connection for a psychiatric disorder. 4. Entitlement to a rating in excess of 10 percent for service-connected peptic ulcer disease, on appeal from the initial grant of service connection. 5. Entitlement to a rating in excess of 10 percent for service-connected tear of the posterior horn of the left medial meniscus, on appeal from the initial grant of service connection. 6. Entitlement to a rating in excess of 10 percent for a service-connected tear of the posterior horn of the right medial meniscus, on appeal from the initial grant of service connection. 7. Entitlement to a rating in excess of 10 percent for a service-connected low back disorder, on appeal from the initial grant of service connection. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The veteran had active service from January 1974 to January 1980 and from February 1991 to December 1991. This matter comes before the Board of Veterans' Appeals (the Board) on appeal as a result of rating decisions in April 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The procedural posture of this case was discussed in the Introduction section of the Board's October 1998 remand. At that time, issues numbered four through seven above were characterized as increased rating claims. Since that remand, the United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that there is a distinction between a claim based on disagreement with the original rating awarded and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). Because the veteran had appealed the initial disability evaluations assigned upon establishment of entitlement to service connection, and because the left and right knee disorders and back disorder were evaluated as 10 percent disabling (effective the date service connection was established) while the case was on remand, issues four through seven are restated as above. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (claimant seeks maximum available benefits, unless he or she clearly expresses a contrary intent). REMAND Since the Board's October 1998 remand, and after the RO's readjudication of the claims in a January 2001 rating decision and its issuance of a March 2001 supplemental statement of the case (SSOC), the RO received directly into the record copies of VA clinical records prepared between March 1999 and April 2001. Evidence received by the RO prior to transfer of the records to the Board after an appeal has been initiated (including evidence received after certification has been completed) must be referred to the appropriate rating or authorization activity for review and disposition. If any prior statement of the case (SOC) or SSOC were prepared before the receipt of the additional evidence, a SSOC must be furnished to the veteran and his or her representative, unless the additional evidence received duplicates evidence previously of record that was discussed in the SOC or a prior SSOC or the additional evidence is not relevant to the issue, or issues, on appeal. 38 C.F.R. § 19.37(a). See also 38 C.F.R. § 19.37(b) (if such evidence is received by the RO after the records have been transferred to the Board for appellate consideration, then the RO will forward them to the Board if it has a bearing on the appellate issue or issues); 38 C.F.R. § 20.1304(c) (pertinent evidence submitted to or accepted by the Board must be referred to the RO for review and preparation of a SSOC, unless this procedural right is waived in writing). The record does not include any indication, such as a rating decision or a SSOC, that the RO readjudicated the claims in light of this additional evidence. As these additional VA clinical records are pertinent to the issues on appeal, the RO was required to consider them in the adjudication. The fact that it did not, and that the veteran did not provide a written waiver of initial RO consideration, necessitates remedial action. Such action might have consisted simply of providing the veteran with an opportunity to submit a waiver. In this case, though, because still further development of the record is necessary, the RO can readjudicate the claims in light of this additional evidence following completion of that development. The further development that is required falls into two categories, both of which suggest noncompliance with the Board's October 1998 remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (veteran is entitled to compliance with Board remand directives). First, in the October 1998 remand the Board directed the RO to request from all possible military and document repository sources the complete medical, clinical, and hospital records for the following periods of time: (a) National Guard service from 1980 to 1991, if any; (b) active service from February to December 1991; and (c) National Guard service from December 1991 to June 1997. The remand specifically indicated that the requests should at minimum be directed to the National Personnel Records Center (NPRC) for the veteran's period of active service in 1991 and to the Alabama Army National Guard. The RO requested service medical records from NPRC in November 1998, by asking for "any service records available on this veteran, to include service medical records", and by stating that service medical records "were not received with the August 1988 request" for the 1974 to 1980 service medical records. NPRC responded in December 1998 that it had no health records on file for the veteran. Also in November 1998, the Alabama Army National Guard provided the RO with copies of service medical records stored on microfiche relevant to the veteran's service, both active and reserve, from 1982 to 1997. These records included, in particular, a copy of the September 1991 hospitalization report, during which the veteran purportedly underwent a highly selective vagotomy for an ulcer disorder at Fort Stewart, Georgia. The remand directive, though, also indicated that if complete records were not obtained from these sources, the RO should contact Martin Army Community Hospital in Ft. Benning, Georgia, and Winn Army Community Hospital in Ft. Stewart, Georgia, for treatment or hospitalization records of the veteran. The RO has not done so, and it is less than clear whether the service medical records currently associated with the claims file are complete. Thoroughness requires that the RO contact those facilities and obtain treatment or hospitalization records of the veteran. It is also noted that NPRC, in April 1992, informed the RO that veteran's service medical records might be located at the Army Reserve Personnel Center in St. Louis, Missouri. There is no indication that the RO has attempted to obtain such records from that source. Second, the Board in its October 1998 remand directed the RO to request that the veteran provide releases for all private care providers who have treated or evaluated him for his service-connected back, knee, and ulcer disorders, or for his hemorrhoids, hypertension, or psychiatric disorder at any time and request the actual treatment records and diagnostic test results from the providers. At a minimum, such record requests were to include requests of Hughston Orthopaedic Clinic and Dr. William Roundtree in Columbus, Georgia. The claims file includes various clinical records from Hughston Orthopaedic Clinic prepared in 1995, but not in 1991 and 1992. The RO sent to the veteran a November 1998 letter, informing him of the need to provide releases for all private care providers who had treated him, including the Hughston Orthopaedic Clinic and Dr. Roundtree. However, the veteran informed the RO in February 1999 that he had lost the letter, and thus the release forms that had accompanied that letter. The RO in January 1999 sent to the veteran a copy of the Board's remand, but there is no indication that the RO again sent to the veteran a copy of the November 1998 letter and appropriate release forms. On remand, the RO must resend the substance of the November 1998 letter along with appropriate release forms. If any request for records is unsuccessful, the RO should advise the veteran and his representative so that he may obtain and submit the records himself, in keeping with his ultimate responsibility to submit evidence in support of his claim pursuant to 38 C.F.R. § 3.159(c). Finally, during the pendency of this appeal, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA redefined VA's duty to assist, enhanced its duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and eliminated the well-grounded-claim requirement. The VCAA is applicable to all claims filed on or after the date of its enactment, or filed before that date and not yet final as of that date. VCAA, Pub. L. No. 106- 475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). While the claim is remanded, it remains the RO's responsibility to ensure that all appropriate development is undertaken in this case. Accordingly, this case is REMANDED for the following: 1. Request all treatment or hospitalization records of the veteran from the Army Reserve Personnel Center in St. Louis, Missouri; Martin Army Community Hospital in Ft. Benning, Georgia; and Winn Army Community Hospital in Ft. Stewart, Georgia. Obtain any releases necessary from the veteran before requesting the records. All documents obtained must be associated with the claims file. 2. Request that the veteran provide releases for all private care providers who have treated or evaluated him for his service-connected back, knee, and ulcer disorders, or for his hemorrhoids, hypertension, or psychiatric disorder at any time. Request the records from the providers, and stress that it is actual treatment records and diagnostic test results that are important. Such record requests should include, at a minimum, requests of Hughston Orthopaedic Clinic and Dr. William Roundtree in Columbus, Georgia. If any request for records is unsuccessful, advise the veteran and his representative so that the veteran may obtain and submit the records himself, in keeping with his ultimate responsibility to submit evidence in support of his claim pursuant to 38 C.F.R. § 3.159(c). 3. Ask the veteran if he has continued to receive treatment for any condition in issue from any VA facility and, if so, to identify the facilities at which he has received treatment. Obtain treatment records, whether maintained in paper, electronic (i.e., computer), or microfiche form, and associate them with the claims file. 4. When the above actions have been completed, the case should be reviewed by the RO to ensure that the foregoing development has been conducted and completed in full. If the development is incomplete, appropriate corrective action is to be implemented. 5. In conducting the development herein directed, the RO must ensure that all notification and development action required by the VCAA is completed, to include any further necessary VA examinations. 6. Thereafter, the RO should readjudicate this claim. If the benefit sought on appeal remains denied, the veteran and the veteran's representative, if any, should be provided a SSOC. An appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matters herein remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).