Citation Nr: 0811629 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-04 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chondromalacia patella, right knee, claimed as arthritis. 2. Entitlement to service connection for chondromalacia patella, left knee, claimed as arthritis. 3. Entitlement to service connection for right hip strain, claimed as arthritis. 4. Entitlement to service connection for left hip strain, claimed as arthritis. 5. Entitlement to service connection for residuals of fracture to the left foot, claimed as arthritis. 6. Entitlement to service connection for hypertension. 7. Entitlement to the concurrent receipt of VA disability compensation benefits and military retired pay between July 1, 2001, and September 7, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The veteran had active military service from February 1963 to February 1977. Additionally, he served in the Naval Reserves from February 1961 to February 1963 and in the Army National Guard from December 1978 to June 1980, July 1985 to March 1987, June 1993 to September 1995, and May 1996 to September 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2001 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified before a Decision Review Officer at a hearing at the RO in March 2005 and before the undersigned Veterans Law Judge at a hearing at the RO in January 2008. Transcripts of both hearings have been associated with the claims file. In a statement received by the RO in October 2007, the veteran claimed that residuals from skin grafts of his left foot subsequent to a crush injury he suffered while in service have recently caused the skin on his foot to crack and bleed. He stated that he is now unable to wear closed shoes or socks, which has caused him to stop work, and referenced receiving treatment at the Malcom Randall VA Medical Center in Gainesville, Florida, for the condition. A cover letter from his representative accompanying the veteran's October 2007 statement identifies these as claims for a left foot condition and individual unemployability due to service-connected disability (TDIU). The RO, however, has adjudicated neither the claim for a skin disorder of the left foot caused by residuals of a skin graft nor the claim for TDIU. These claims are thus not currently before the Board and are referred to the RO for appropriate action. Additionally, in an October 2007 letter to the RO, the veteran contended that he suffered from sexual problems and from sleeping problems due to a stuffy nose and snoring, both of which he attributed to the medication prescribed to treat his hypertension. Although it is not clearly stated in the veteran's letter, the Board construes these as claims for service connection for sexual problems and for sleeping problems secondary to hypertension, for which the veteran is currently seeking service connection. The RO has not adjudicated these issues. These claims are thus not currently before the Board; hence, they are referred to the RO for appropriate action. The veteran has also stated in multiple submissions to the RO that joint pain (claimed as arthritis) affects both his feet. The RO, however, has adjudicated solely the question of service connection for claimed residuals of the veteran's in- service left foot injury. As the claim of service connection for joint pain in the veteran's right foot is thus not before the Board, it is referred to the RO for appropriate action. Similarly, the Board notes that the RO has not adjudicated the issue of whether the veteran's claimed exposure to radiation during service caused his generalized arthritis, as the veteran claimed in a September 2006 letter to the RO. Specifically, in that letter the veteran claimed that his exposure to radiation was "the reason why the arthritis is spreading through the rest of my body," including his hips, knees, and feet. As this claim is thus not before the Board, it is remanded to the RO for appropriate action. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the veteran's claims. A review of the record shows that the veteran's file contains service medical records from the veteran's active duty, as well as from his August 1996 rappelling accident, which occurred during active duty for training in the Army National Guard. The file also contains the veteran's medical examination conducted on his entrance into the Army National Guard in June 1985. Further, the veteran's service personnel records from his service in the Naval Reserves and Army National Guard have been associated with the claims file. However, a March 2003 letter from the veteran indicates that his medical records were stored at the 5th Regiment Armory in Baltimore, Maryland. The RO appears to have written to the 5th Regiment Armory in January 2003, April 2003, and January 2006 requesting the veteran's medical records. The file includes a June 2003 response from the Armory stating that no records were available for the veteran. However, the veteran notified the RO in July 2003 that his medical records had been retired to the United States Army Reserve Personnel Center in St. Louis, Missouri (APERCEN). No effort appears to have been made, however, to retrieve these records from APERCEN. As these records may have a bearing on the veteran's claims on appeal, any such records must be sought. The Board also notes that in the veteran's hearing before the undersigned in January 2008, the veteran stated that he had been receiving treatment at the Malcom Randall VA Medical Center in Gainesville, Florida (VAMC). He indicated that he had been receiving care at that facility on an ongoing and consistent basis since approximately 2006, and that he had a primary care physician at the VA facility. The RO, however, failed to request those records from the Gainesville VAMC, and no such records are present in the veteran's claims file. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified VA medical records may have a bearing on the veteran's claims on appeal, any records associated with the veteran's reported treatment at any time from January 2006 to the present at the Gainesville VAMC or any other VA medical facility identified by the veteran must be sought. With regard to the issue of entitlement to the concurrent receipt of VA disability compensation benefits and military retired pay between July 1, 2001, and September 7, 2003, the RO informed the veteran via an October 2007 letter that VA would withhold benefits to allow for an adjustment in his retired pay and to prevent an overpayment of benefits. In a letter dated in October 2007, the veteran expressed disagreement with this decision and submitted evidence documenting the onset date of his military retired pay. This letter is a timely notice of disagreement on the issue of withholding of compensation payments pursuant to overpayment of VA benefits and military retired pay. See 38 C.F.R. § 20.201 (2007). However, the RO has not issued a statement of the case on the issue, and no appeal has been perfected. The Court has held that where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve VA of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the actions requested above, VA should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. In view of the foregoing, the case is REMANDED for the following action: 1. The veteran should again be asked to provide the name(s) of all VA and non-VA health care providers that have treated him for bilateral knee disability, bilateral hip disability, residuals of a left foot fracture, or hypertension since service discharge. The AMC should then obtain all medical records identified that are not already of record. In particular, the AMC should ask for records from the Gainesville VAMC since January 2006. The procedures set forth in 38 C.F.R. § 3.159(c) (2007) as regards requesting records from Federal facilities must be followed. All records and/or responses received should be associated with the claims file. 2. The AMC should request any and all medical records, to include treatment records as well as induction and separation medical examinations, from the veteran's service in the United States Naval Reserve and the Army National Guard must be sought from the United States Army Reserve Personnel Center in St. Louis, Missouri. The procedures set forth in 38 C.F.R. § 3.159 (2007) as regards requesting records must be followed. If any records sought are determined to be unavailable, the veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2007). All records and/or responses received should be associated with the claims file. 3. The veteran and his representative should be sent a statement of the case on the issue of entitlement to the concurrent receipt of VA disability compensation benefits and military retired pay between July 1, 2001, and September 7, 2003. If the veteran perfects his appeal by submitting a timely and adequate substantive appeal, then the claim should be returned to the Board. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal should be adjudicated in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted, the veteran and his representative must be furnished an appropriate supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified. The veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2007). ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2007).