Citation Nr: 1031277 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 96-41 249A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a lumbar spine knee disability. 4. Entitlement to service connection for asthma, reactive airway disease. 5. Entitlement to service connection for a left eye disability. 6. Entitlement to service connection for herpes simplex. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad INTRODUCTION The Veteran served on active duty from April 1992 to June 1995, with additional unconfirmed service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that denied the above claims. In December 1996, the Veteran was afforded a personal hearing before a hearing officer at the RO. A transcript of the hearing is of record. In September 2008, the Board remanded the present matter for additional development and due process concerns. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that another remand is necessary. 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 (1998). In the previous Board remand, the RO was requested to obtain the Veteran's service medical records from active duty and personnel records for the Veteran's service prior to April 1992 from the National Personnel Records Center (NPRC) or other pertinent sources. All efforts to obtain these records were to be fully documented and the NPRC and any other source contacted was required to provide a negative response if records were not available. The RO contacted the NPRC in October 2008 requesting the records; however, there is no response from the NPRC of record. Therefore, the AMC/RO did not fully comply with the Board's remand request and these records must be again requested on remand. As such, a remand is required to correct this deficiency. The Board instructed the RO to afford the Veteran VA examinations to obtain medical opinions after any outstanding service treatment records were obtained. The Veteran was afforded VA examinations in January 2010 which are inadequate because the failure to procure all outstanding service treatment records resulted in an incomplete record. Further, the examiners did not provide adequate opinions. Once all steps are taken to obtain any outstanding service treatment records, the Veteran should be scheduled for additional VA examinations. Barr v. Nicholson, 21 Vet. App. 303 (2007). In an October 2008 letter, the RO notified the Veteran that records had been requested from the NPRC. There is no correspondence from the RO to the Veteran notifying him of the outcome of that search and the records request is not noted in a supplemental statement of the case (SSOC). The record includes an SSOC dated May 2010 which references an April 28, 2010 SSOC; however, there is no April 2010 SSOC in the claims folder. On remand, the RO should indicate whether there an SSOC was issued in April 2010 and if so, it should be associated with the record. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's service medical records from active duty and personnel records for the Veteran's service prior to April 1992 from the National Personnel Records Center (NPRC) or other pertinent sources. All efforts to obtain these records should be fully documented, and the NPRC and any other source contacted must provide a negative response if records are not available. The Veteran must be notified of the outcome of any search. 2. After completion of the foregoing, even if additional records are not obtained, return the claims folder to the VA physician who examined the Veteran in July 2009, if available, for an addendum. If the physician is unavailable, or if the examiner determines that another examination is warranted, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of his depressive disorder. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Based on the examination and review of the record, the examiner is requested to provide an opinion as whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that any current right knee disability, left knee disability, lumbar spine disability, asthma, left eye disability, or herpes simplex had their onset during active service or are related to any in-service disease or injury. A detailed rationale for any opinion expressed should be provided. 3. Then, readjudicate the claims on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. The RO should specifically indicate whether an SSOC was issued on April 28, 2010. If the decision with respect to the claims remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant 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. 2009). _________________________________________________ M. E. LARKIN 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) (2009).