Citation Nr: 0813411 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 03-12 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for mechanical back syndrome. 2. Entitlement to service connection for a pulmonary disorder, to include residuals of sarcoidosis. 3. Entitlement to service connection for hemorrhoids. 4. Entitlement to service connection for arthritis of the right knee. 5. Entitlement to service connection for arthritis of the left ankle. 6. Entitlement to service connection for hypopigmented macules. 7. Entitlement to service connection for post-traumatic syndrome/headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service from July 1966 through July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for bronchitis/asthma was remanded by the Board in March 2004, but has since been granted in the September 2007 rating decision. It is no longer an issue under appeal. The remaining issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran's claims cannot yet be finally adjudicated. Neither the Board's March 2004 remand orders, nor VA's duty to assist have been sufficiently complied with. The Board's remand noted that the claims folder contains a VA Form 10-7131 suggesting that the veteran sought treatment at a Miami, Florida, VA Hospital in January 1976. Consequently, the Board ordered the RO, in remand paragraph number 1, to "associate with the claims folder complete VA clinic records from the Miami, Florida VAMC and VAH since 1970." A November 2004 request in the file clearly states that this "is a BVA Remand Order, please send copies of VA clinical records since 1970 to the presentf records can not be found, please state in writing." The only VA records added to the claims folder following the March 2004 remand include records dating between 2002 and 2005. There is no indication in the file that records were requested dating back to 1970, other than the SSOIC of August 2007 which is contradicted by the evidence of record and by the statement regarding evidence obtained in the rating decision of September 2007. In this regard, the March 2004 Board remand was clearly not complied with. If any action required by a remand is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. While the Board regrets the delay, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also ordered a VA examination with regard to the veteran's claim for service connection for the residuals of sarcoidosis. In particular, remand paragraph number 2 required that the veteran "be afforded examination by an infectious disease specialist in order to determine whether he manifests any residual disability from his in-service treatment for sarcoidosis...The examiner should be requested to perform any and all tests necessary and the results should be included in the examination report. The examiner should offer opinion on the following questions: (1) whether the veteran manifests any chronic residuals of in-service treatment for sarcoidosis and, if so, (2) identify all such residuals." The only post-remand discussion of sarcoidosis is a minimal discussion in January 2005, which is insufficient for rating purposes and does not comply with the remand order. The "pulmonary consult response" note indicates that the veteran was interviewed and examined on that day and that the previous medial records were reviewed. The physician mentioned a December 2004 pulmonary function test, a copy of which is not in the claims folder, and without discussion stated that "[t]here is no clinical or radiological evidence of active sarcoidosis or chronic clinical conditions related to the treatment of this condition." Again, there was apparently diagnostic testing conducted in December 2004, but the reports are not of record, and there was no discussion by the physician of relevant outpatient treatment records such as the November 2003 sleep center consultation reports that repeatedly note the veteran's history of sarcoidosis in association for symptoms of obstructive sleep apnea. The January 2005 report is not compliant with the Board's remand order and does not provide information sufficient for a determination at this time. As such, appropriate corrective action should be undertaken. See Stegall. The March 2004 remand also required a VA orthopedic examination to determine the current severity of the veteran's service-connected back disability. The August 2007 Supplemental Statement of the Case continues the veteran's back rating at 10 percent, citing a December 2004 VA examination report. The Board has reviewed the record and there is no December 2004 VA orthopedic examination report in the claims folder. This report must be available for the Board's review to enable an appropriate decision regarding this claim. This report is a record of a VA medical facility and, therefore, in the control of a federal department and under the VA's duty to assist found in 38 C.F.R. § 3.159(c)(2). As such, the matter must be remanded so that the record is complete prior to the Board's final decision. Finally, since the remand, the veteran has notified VA that he was treated by private physicians with the "American Medical Health Plan" between September 1975 and September 1986. Under 38 C.F.R. § 3.159(c)(1), VA has a duty to assist the veteran in obtaining these private medical records, which are potentially relevant to his service connection claims. Accordingly, the case is REMANDED for the following action: 1. Ensure that VA has met its duty to assist the veteran in obtaining all relevant private treatment records under 38 C.F.R. § 3.159(c)(1). In particular, obtain a signed authorization to obtain records from the veteran with regard to any private treatment facilities, including but not limited to the American Medical Health Plan records dating back to 1975. The veteran must provide sufficient information, such as the name and address of the treatment provider, so that VA can assist. All records obtained should be associated with the claims folder. 2. Ensure that VA has met it's duty to assist the veteran under 38 C.F.R. § 3.159(c)(2) and met the requirements of the March 2004 Board remand, by obtaining all relevant VA treatment records and examination reports, including, but not limited to, complete VA clinical records from the Miami, Florida, VAMC and VAH since 1970, the December 2004 VA spine examination report, and reports of relevant pulmonary testing from December 2004. All records obtained should be associated with the claims folder. 3. Afford the veteran an appropriate and complete VA examination to determine whether he manifests any residual disability from his in-service sarcoidosis treatment. The claims folder and a copy of this remand should be provided to the examiner prior to the examination. The veteran should be afforded any tests necessary and the results should be included in the examination report. The examiner should identify and discuss any chronic residuals of in-service treatment for sarcoidosis, including a discussion of whether there is any residual sleep disorder associated with sarcoidosis, as alluded to in May 2003 VA treatment records. 4. Readjudicate the veteran's claims. If the benefits sought on appeal remain denied, the veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The veteran has the right to submit additional evidence and argument on the matters 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. 2007). _________________________________________________ MARJORIE A. AUER 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) (2007).