Citation Nr: 1307288	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  03-12 918	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for bilateral carpal tunnel syndrome. 

2.  Entitlement to service connection for a right knee disorder.  

3.  Entitlement to service connection for a left knee disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel


INTRODUCTION

The Veteran served on active duty from January 1993 to January 1995. 

This case was previously before the Board of Veterans' Appeals (Board) on appeal from adverse action by the above Department of Veterans Affairs (VA) Regional Office (RO).  In July 2010, the Board remanded the issues of entitlement to service connection for bilateral carpal tunnel syndrome, right and left knee disorders, and ulcers.  Following development requested by this remand, a June 2012 rating decision granted service connection for a gastrointestinal disability that includes ulcers; as such, the only claims remaining on appeal are as listed on the Title Page.  

In December 2009, a hearing was held before a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c).  The Judge who presided at this hearing has since retired from the Board, and the Veteran was informed of her right to present testimony at another hearing before a Veterans Law Judge who could participate in any decision made on appeal pursuant to 38 U.S.C.A. § 7107(c) and 38 C.F.R. § 20.707 by letter dated in June 2012.  In a response received from the Veteran in July 2012, she indicated that she did not wish to appear at another hearing.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

Unfortunately, while the development requested with respect to the issues remaining on appeal requested by in the July 2010 Board remand has been accomplished, the case must be remanded again to ensure the Veteran due process.  

At the time of this writing, the Virtual VA file (VA's electronic data storage system) reflects potentially pertinent VA clinical records dated from June 18, 2012, to December 7, 2012, that are not documented to have been reviewed by RO in the June 2012 supplemental statement of the case (SSOC) completed following the development requested in the July 2010 Board remand.  The Veteran was informed of this fact by letter dated in February 2013 that also indicated she had to the right to waive initial review of this evidence by the RO if that was her desire.  She responded later in that month that she desired a remand for the RO to consider the additional evidence.  As such, and given the provisions of 38 C.F.R. § 20.1304(c), this case must be remanded to the RO to conduct the initial consideration of the clinical records dated from June 18, 2012, to December 7, 2012, contained in the Virtual File that have not been previously considered by the RO in the adjudication of the claims remaining on appeal.  See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).  Accordingly, the case is REMANDED for the following action:

The RO should readjudicate the issues of entitlement to service connection for bilateral carpal tunnel syndrome and right and left knee disabilities with consideration of the records contained in the Virtual File dated from June 18, 2012, to December 7, 2012, and any additional pertinent records that may be added to the Virtual File.  To the extent any of these claims are denied, the RO should furnish the Veteran and her representative with an appropriate SSOC.  After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review.  

The appellant 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).


_________________________________________________
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).