Citation Nr: 0121177 Decision Date: 08/20/01 Archive Date: 08/27/01 DOCKET NO. 94-24 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a left shoulder injury. 2. Entitlement to service connection for residuals of a right ankle injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from October 1985 to March 1988. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 1992 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board and was remanded to the RO in February 1997, January 1999 and September 2000. REMAND As noted above, the Board most recently remanded these claims for further development in September 2000. Specifically, the Board requested that the RO request relevant records from specified private physicians. The Board instructed the RO to use the medical release forms (VA Forms 21-4142) the veteran submitted at her July 1998 personal hearing. The RO was told to disregard the veteran's failure to return medical release forms sent to her in February 1999. Upon review, however, it appears that such records were not requested. Instead, in September 2000, the RO sent the veteran medical release forms for the private physicians and requested that she fill the forms out and return them to the RO so that VA could request copies of her private medical records. Although the release forms submitted in July 1998 are now somewhat dated, the Board notes that they have not been withdrawn or retracted by the veteran. In Stegall v. West, 11 Vet. App. 268 (1998), the Court of Appeals for Veterans Claims (Court) held that a remand was necessary, in part, because of the RO's failure to follow the Board's directives in a prior remand. The Court further held that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders. Id. The Board deeply regrets any further delay in this case. In view of the RO's failure to follow the directives in the September 2000 Remand, the Board concludes that additional development of the record is required prior to appellate disposition. The Board also notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Accordingly, this case is REMANDED for the following: 1. Using the VA Forms 21-4142 submitted at the veteran's July 1998 personal hearing, the RO should request medical records directly from Dr. Mark Weber and Dr. James Bash, from 1992 until the present, relating to any treatment provided the veteran for left shoulder or right ankle disability. All records obtained should be associated with the claims file. If after making reasonable efforts, the RO is unable to obtain all of the relevant records so sought, the RO must provide the veteran with written notification that it was unable to obtain records with respect to the claim. Such notification must be in compliance with Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). A copy of the notice must be associated with the claims file. 2. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act are fully complied with and satisfied. 3. Thereafter, the RO should readjudicate the issues on appeal. If any benefit sought remains denied, the veteran and her representative should be provided a supplemental statement of the case, which reflects RO consideration of all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until contacted by the RO. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2001) (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. U. R. POWELL Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), 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).