Citation Nr: 1303399 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-22 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for residuals of a right foot cold injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1946 to September 1948, and from September 1950 to September 1953. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columba, South Carolina, which denied the Veteran's service-connection claims for diabetes mellitus, type II, and for residuals of a right foot cold injury. The Veteran disagreed with the RO's determinations, and perfected an appeal as to both issues. In June 2011, the Veteran and his spouse testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. The Board remanded the Veteran's appeal in August 2011 for additional evidentiary development. The Appeals Management Center (AMC) subsequently readjudicated the Veteran's service-connection claims in an October 2012 supplemental statement of the case (SSOC), and returned the Veteran's claims file to the Board for further appellate review. The Board notes that the Veteran also perfected an appeal as to a service-connection claim for a bilateral hearing loss disability, which the Board also remanded in its August 2011 decision. The RO has since granted the Veteran's claim. See the RO's October 2012 rating decision. Accordingly, that issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. 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. REMAND After having carefully considered the matter, and for reasons explained immediately below, a remand is necessary for further evidentiary development and to ensure compliance with the Board's August 2011 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). As noted in the Introduction above, the Board remanded the Veteran's service-connection claims for diabetes mellitus and for residuals of a right foot cold injury in an August 2011 decision. In pertinent part, the Board instructed the agency of original jurisdiction (AOJ) to contact the Veteran and request that he provide the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, that treated him for diabetes and residuals of a cold injury since service. After the Veteran signed the appropriate releases, the AOJ was to obtain those records that were not already associated with the claims folder. All attempts to procure the records were to be documented, and if any such records could not be obtained, the Veteran was to be notified of this fact, so that he may have the opportunity to submit them for VA review. See the Board's August 2011 decision, page 4. In compliance with the Board's instructions, the AMC sent the Veteran a letter dated September 14, 2011 requesting that the Veteran identify any VA or non-VA health care providers that have treated him for his claimed disabilities. The Veteran was instructed that if there were records he wished the VA to obtain on his behalf, he should complete and return a release form [VA Form 21-4142]. The AMC specified that it will attempt to obtain the private treatment records he identifies, as well as any identified outstanding VA treatment records. Within two weeks, the Veteran submitted a signed VA Form 21-4142 [Authorization and Consent to Release Information to the Department of Veterans Affairs] dated September 25, 2011. Although he left the body of this form blank, he attached a Statement in Support of Claim to the form indicating that he received medications from multiple pharmacies in the years following his separation from service to the present day. Indeed, he specifically noted prior dealings with Professional Pharmacy from the 1950's to the early 1990's, and with the pharmacy at CVS from 1992 to the present. He gave specific addresses and phone numbers for each pharmacy. Although the Veteran has specified that many of his private treatment records, to include those from Rexall Drug Store, Medicine Shoppe and Doctor's Family Medicine, are no longer in existence or are unavailable, he did not indicate as much to VA with respect to the above-referenced pharmacy records. It appears that by attaching this September 25, 2011 statement [identifying the names of the pharmacies he has used, the dates of use, and the pharmacy addresses and phone numbers] to his signed VA release form of the same date, the Veteran wished VA to obtain any relevant records that may be available from these pharmacies. The AMC did not attempt to locate any of these pharmacy records prior to readjudicating the Veteran's claims and returning the Veteran's claims file to the Board. As such, there is noncompliance with the Board's August 2011 remand instructions, outlined above. This case must therefore be remanded again so that such evidentiary development can take place. The Board additionally notes that on his September 2011 statement, the Veteran also indicated that he received treatment at the VA Medical Center in Asheville, North Carolina. Review of the Veteran's physical and electronic claims folder demonstrates that the most recent VA treatment reports of record are only dated through August 2010. It appears that the AMC did not request any updated VA records after being notified of their existence by the Veteran, as the Board so instructed in its prior remand. It is the duty of the VA to assist a veteran in obtaining records from Federal agencies, including VA Medical Centers. See 38 U.S.C.A. § 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, any outstanding VA treatment reports dated since August 2010 that are relevant to the Veteran's diabetes and cold injury residual claims should be obtained. Accordingly, the case is REMANDED to the RO/AMC for the following action: (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. The RO/AMC should request that the Veteran identify any additional medical treatment he has received for his claimed diabetes and right foot cold injury residual disabilities. The Veteran and his representative should be provided multiple copies of VA Form 21- 4142, Authorization and Consent to Release Information, and should be asked to complete these releases if he wishes the VA to attempt to obtain private treatment records on his behalf. Of particular interest are any treatment records from Professional Pharmacy from the 1950's to the early 1990's, and from the pharmacy at CVS from 1992 to the present, as identified by the Veteran in his September 25, 2011 Statement in Support of Claim. After the Veteran has signed the appropriate releases, the RO/AMC should obtain those records that are not already associated with the claims folder. In particular, the RO/AMC must specifically request any relevant records from the VA medical center in Asheville, North Carolina dating from August 2010 to the present day. All attempts to procure these records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should readjudicate the Veteran's service-connection claims. If the either claim is denied, the RO/AMC should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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).