Citation Nr: 1230786	
Decision Date: 09/07/12    Archive Date: 09/10/12

DOCKET NO.  09-22 765	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a higher initial evaluation for residuals of a left tibia fracture, evaluated as 10 percent disabling from December 14, 2007.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel


INTRODUCTION


The appellant served as a member of the Army National Guard and had a period of active duty for training from July 2004 to February 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  The case has subsequently been transferred to the Chicago, Illinois RO.

In June 2011, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims folder. 

The Board remanded the case in August 2011 for additional development.  The Board instructed the agency of original jurisdiction (AOJ) to request that the appellant submit information concerning all sources of treatment of her disability, specifically the treatment provider who had prescribed a 600-milligram dose of ibuprofen, and then re-adjudicate the claim.  The AOJ sent the appellant a notice letter in September 2011.  The appellant submitted a response dated in February 2012.  A supplemental statement of the case (SSOC) was issued in July 2012, in which the AOJ again denied the appellant's claim for a higher initial evaluation. 


REMAND

The Board finds that further action is required before a decision can be reached on the merits of the claim on appeal. 

Specifically, the Board finds that the VA has not fulfilled its duty to assist the appellant in obtaining potentially relevant VA records.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).  As noted above, the AOJ requested all sources of treatment of the appellant's service-connected disability.  The response, dated in February 2012, included an appointment list printout from the Jesse Brown VAMC in Chicago, Illinois; a statement from the appellant describing the treatment that she had received from this facility; and the names of two VA providers, one of whom is a physical therapist.  The AOJ acknowledged the appellant's response in the July 2012 SSOC, but did not request records from that VA facility.  To the extent that there has not been substantial compliance with the August 2011 remand directives, a remand is once again necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order).  The AOJ must attempt to obtain the above-identified medical records and associate any records obtained with the claims file.  If any records sought are determined to be unavailable, the appellant must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2011). 

Accordingly, the case is REMANDED for the following action:

1.  Obtain from the Jesse Brown VAMC in Chicago, Illinois, all medical records pertaining to the appellant's treatment at that facility at any time from February 2005 to the present.  Specific attention should be given to obtaining physical therapy notes.  All records and/or responses received should be associated with the claims folder.  The AOJ should request a written response, especially if no records are available.  If any records sought are determined to be unavailable, the appellant must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2011). 

2.  After undertaking any other development deemed appropriate, re-adjudicate the claim.  If the benefit sought remains denied, issue a supplemental statement of the case and provide the appellant and her representative opportunity to respond before the case is returned to the Board.  

The appellant 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 claim 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. 2011).



_________________________________
MARK F. HALSEY
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) (2011).