Citation Nr: 1300913 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-39 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to service-connected arthritis of the spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1945 to November 1946. This matter was last before the Board of Veterans' Affairs (Board) in May 2012, on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO's decision, in pertinent part, denied the Veteran's claim for service connection for a left knee disability. The Veteran timely appealed the rating action and the appeal was subsequently remanded on multiple occasions in order to assist the Veteran in developing his claim. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The Board reviewed the virtual file, but found no additional medical evidence pertinent to the present appeal. The Veteran and his spouse testified before the undersigned Veterans Law Judge via video conference in February 2010. A transcript of the hearing has been prepared and associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is 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 Board must remand the claims file for the RO/AMC to comply with VA's duty to assist because the record reflects that additional evidence remains outstanding. VA is also required by the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. The last VA treatment records within the claims file were generated on December 21, 2010, more than two (2) years ago. Further, the claims file reflects that the Veteran was regularly treated at VA Medical Centers (VAMCs) from as early as November 1981, but there are gaps in the treatment records associated with the claims file. Specifically, no records between January 3, 2006 and September 22, 2004, between December 8, 2003 and October 28, 1982, or prior to October 28, 1982 appear in the claims file. In Bell v. Derwinski, 2 Vet.App. 611 (1992), the Court held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that any such documents are constructively part of the record before the Secretary and the Board even where they are not actually before the adjudicating body. As the claims file indicates that additional VA treatment records remain outstanding, the RO/AMC must take appropriate steps to gather these records and associate them with the claims file. The Veteran's claims file also indicates that other treatment records remain outstanding. Specifically, in November 2012, the Veteran wrote to VA and advised that he had received pertinent medical treatment from "North Health Services" in Chicago and "Madison/Irving Medical Center" in Syracuse, but no records from either source are associated with the claims file. Further, the Board's review of the claims file reflects that, in 1975, the Veteran informed VA health care providers that he had been treated at Cook County Hospital in Chicago, at Baptist Hospital in Memphis, and by a Dr. L.E. McClune in Tunica, Mississippi. When put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet.App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet.App. 363 (1992). While this case is in remand status, the RO/AMC must attempt to obtain any available private treatment records. The appeal is therefore REMANDED to the RO/AMC for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Gather any outstanding records, to include retired hardcopy records, of VA treatment occurring: a. After December 21, 2010; b. Between January 3, 2006 and September 22, 2004; c. Between December 8, 2003 and October 28, 1982; and d. Prior to October 28, 1982. NOTE that the claims file reflects that the Veteran was treated at the VAMC in Memphis, to include the South Memphis community based outpatient clinic (CBOC), during the time periods identified. 2. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. Provide him with forms authorizing the release of any identified outstanding private treatment records. These records include, but are not limited to, records from the following sources: a. "North Health Services" in Chicago; b. "Madison/Irving Medical Center" in Syracuse; c. Cook County Hospital in Chicago; d. Baptist Hospital in Memphis; and e. Dr. L.E. McClune in Tunica, Mississippi. Make at least two (2) attempts to obtain records from any identified source. Any available records must be associated with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 3. Review the claims file and ensure that the above-directed development has been completed in full. If any additional development is necessary, take appropriate steps. 4. Readjudicate the remanded claim. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts 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, 271 (1998). 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. 2012). _________________________________________________ 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) (2012).