Citation Nr: 1305352 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 08-20 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 12, 1976 to June 18, 1976. This matter was last before the Board of Veterans' Appeals (Board) in June 2012 on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO denied entitlement to service connection for a bilateral knee disability and denied a petition to reopen a claim of entitlement to service connection for flatfeet. In February 2011, the Board remanded the issues for additional development. After some additional development had been completed, the Board issued a June 2012 decision denying the petition to reopen the claim for flatfeet, but remanding the claims of entitlement to service connection for knee disabilities for further development to specifically include the provision of a VA examination. The matter has now been returned to the Board for appellate disposition. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The Board has carefully reviewed the additional evidence within the Veteran's virtual 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 duties to notify and assist the Veteran. In the February 2011 remand, the Board directed the RO/AMC to "request all STRs [service treatment records] from the Army Hospital in Fort Benning, Georgia" and, if no records could be obtained, to document the request efforts and to inform the Veteran pursuant with 38 C.F.R. § 3.159(e) (i)-(iv). Although the record reflects that a later February 2011 inquiry via the Personnel Information Exchange System (PIES) resulted in confirmation by the service department that it had provided the treatment records associated with the Veteran's service record, it does not indicate that any request for unassociated records was made to the Army Hospital in Fort Benning, Georgia as directed by the Board. Further, the search efforts undertaken by the RO/AMC were not documented in accordance with 38 C.F.R. § 3.159(e) and no 38 C.F.R. § 3.159(e) notice was provided to the Veteran. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet.App. 268, 271 (1998). While this case is in remand status, the RO/AMC must request, from the Army Hospital in Fort Benning, Georgia, any treatment records pertaining to the Veteran that were not already associated with his service record. If no such records can be located, the RO/AMC must provide the Veteran with notice of that fact. Pursuant to 38 C.F.R. § 3.159(e), the notice must identify the records VA was unable to obtain, explain the efforts VA made to obtain the records, inform the Veteran that VA will decide the claim based on the evidence of record unless he submits the records, and notify him that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). 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 record associated with the claims file is dated November 2, 2012 and the Board's review of the record reveals that no VA treatment records dated prior to September 1, 2005 are associated with 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 private treatment records remain outstanding. Specifically, in January 2006, the Veteran submitted partial treatment records from a Dr. Kimbrell (reflecting that additional care records exist). He submitted partial records (also reflecting that additional care records exist) from a Dr. Real in February 2006. Further, in February 2006, he also informed his VA physicians that he was treated by a Dr. Carr of Southern Orthopedic Specialists at Brookwood and referred to "OSH orthopedic." No records of treatment by Dr. Carr or "OSH," and no further records from Doctors Kimbrell or Real, appear in the claims file. 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 from the identified sources. 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 after November 2, 2012 OR PRIOR TO September 1, 2005. NOTE that the claims file reflects that the Veteran has been treated at the VAMC in Birmingham. 2. Attempt to locate any outstanding in-service records of treatment from Martin Army Clinic/Hospital at Fort Benning, Georgia. If no additional records can be located, make a finding of unavailability and send a letter to the Veteran advising him that the records could not be located. The letter must inform him of the efforts VA made to obtain the records and advise him that VA will decide the claim based on the evidence of record unless he submits the records - notify him that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). Also advise him that alternative forms of evidence can be developed to substantiate the claim, including, but not limited to "buddy certificates" and letters. Dixon v. Derwinski, 3 Vet.App. 261, 263-264 (1992); see Washington v. Nicholson, 19 Vet.App. 362 (2005) (remanding claim to the Board to address VA's duty to "exercise greater diligence in assisting the appellant with the development of evidence"). 3. 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. Dr. Kimbrell; b. Dr. Real; c. Dr. Carr of Southern Orthopedic Specialists at Brookwood; and d. "OSH Orthopedic." 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. 4. 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. 5. Readjudicate the remanded claims. If the claims are 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).