Citation Nr: 1304274 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 04-10 051 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 10 percent for chondromalacia, left patella (a "left knee disability"). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1981 to January 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Cleveland, Ohio RO. A Travel Board hearing was held before the undersigned in December 2007; a transcript of the hearing is included in the claims file. This matter was previously before the Board in March 2008, March 2011, and June 2012, and remanded for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND Because this matter was prematurely returned to the Board following the June 2012 Remand (and not all action sought was completed), it must again be remanded. In the June 2012 remand, the Board noted that there appeared to be outstanding records of VA and private treatment that are pertinent to the disability on appeal. Specifically, the Board noted that VA treatment records reflect that the Veteran underwent left knee arthroscopic surgery for ACL and meniscal repair in May 2011. The Board noted that he sought non-VA surgical treatment, as indicated on a February 2011 VA treatment record which noted the Veteran's request for an outside referral for knee surgery. The Board found that the complete clinical records relating to the May 2011 surgery (all pre-surgical evaluations/consultations, complete records pertaining to the surgery, and the records pertaining to any post-surgical convalescence) were not associated with the claims file, and instructed on remand that they are pertinent/critical evidence that must be secured. The Board now notes more specifically that the surgery appears to have been performed by non-VA surgeon Dr. Shine at Firelands Hospital (see VA March 2011 and September 2011 treatment records). The Veteran was to be reminded of the provisions of 38 C.F.R. § 3.158(a). (The RO was also instructed to arrange for any further development indicated by the Veteran's response and any new records received.) By a June 22, 2012 letter to the Veteran, the RO implemented [in part, as the letter did not advise the Veteran of 38 C.F.R. § 3.158(a)] the Board's remand instructions, asking him to identify all sources of private evaluation and/or treatment for his left knee disability since April 2011, and in particular any (and all) records pertaining to the May 2011 left knee surgery, and to submit authorization release forms for any identified providers. The Veteran was not advised that he had up to one year to respond, and has not yet responded. The RO nonetheless (disregarding the 1 year period the Veteran had to respond) readjudicated the matter in an October 2012 supplemental statement of the case (SSOC), noting that he had not responded to the June 2012 letter. The Veteran was informed on previous Board remand that a governing regulation, 38 C.F.R. § 3.158, provides that where evidence (including releases for private records) requested in connection with a claim for VA benefits is not received within a year of the request, the claim is considered abandoned. The Board invites the AMC's attention to its June 2012 remand, specifically to the language advising the Veteran that he has one year to respond. The one year period has not yet expired. Significantly, the Board's remand had noted that the record was incomplete, and that the evidence sought was considered critical and highly pertinent. Those records cannot be secured by VA without the Veteran's releases. His claim cannot be properly addressed without those records, as their absence leaves the disability picture incomplete. Because the RO has readjudicated the matter on the merits, suggesting that it is acceptable, this matter must once again be remanded to the RO for compliance with the previous order for development of the evidentiary record. Furthermore, AMC is advised (in case it is unaware) that the U.S. Court of Appeals for Veterans Claims (Court) has found (by endorsement of Joint Motions by the Parties to the effect) that readjudication of a claim prior to the expiration of a time period afforded for response is a due process violation that invalidates any application of 38 C.F.R. § 3.158(a). AMC is reminded that compliance with the Board's remand instructions is not discretionary, but is mandated as a matter of law. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following: 1. The RO must ask the Veteran to identify all medical providers from whom he has received treatment for the left knee disability since April 2011, and to provide authorizations for VA to secure the complete updated clinical records of all such treatment and evaluations. Of particular interest are complete records of the evaluations leading up to the surgery by Dr. Shine at Firelands Hospital in May 2011, the records pertaining to that surgery, and the records pertaining to the post-operative convalescence. He must be afforded the remainder of the one year period (from June 24, 2012) provided by regulation to respond. If he again does not submit the authorization forms sought, as requested, the claim must be processed under 38 C.F.R. § 3.158 as abandoned. If he provides the identifying information and releases sought, the RO should secure for the record copies of the complete clinical records of the identified treatment not already associated with the claims file. He should be notified if any private/non-VA records identified are not received pursuant to the RO's request, and advised that it is his responsibility to ensure that the records are received. If a submission by a provider or the Veteran is incomplete, the Veteran must be so advised, and afforded the opportunity to complete the submission. If a private provider does not respond to the RO's request for records, and the Veteran does not submit such records upon being so advised, the claim must be processed as abandoned under 38 C.F.R. § 3.158(a). 2. The RO should arrange for any further development suggested by the records received pursuant to the instructions above. The RO should then (after June 22, 2013, if the Veteran does not respond with the identifying information and releases, in which case the readjudication must be under 38 C.F.R. § 3.158(a)) readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be 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 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). _________________________________________________ George R. Senyk 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).