Citation Nr: 1310370 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-32 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for osteomyelitis of the left distal femur. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1979 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran's claim to reopen his service connection claim for osteomyelitis of the left distal femur was previously remanded in November 2012, so that additional service treatment records (STRs), if available, could be obtained; so that private medical records could be obtained; and, so the Veteran could attend a VA examination. Because there has not been substantial compliance with these remand directives, the Board must again remand the issue so that the proper development can occur. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran's service treatment records were first obtained by the RO in October and December of 1980. His original claim to service connect osteomyelitis was denied in a December 1980 rating decision, and he was provided notice of the decision in January 1981. In February 1981, the RO received a form from the National Personnel Records Center (NPRC) with the following notation: "Complete item 20 for search of clinicals Record flagged, will forward, when meds come in." This notation suggests the possibility that additional STRs exist. See 38 C.F.R. § 3.156(c). Based on this notation, the Board's November 2012 remand directed the RO, via the Appeals Management Center, to make efforts to obtain a complete copy of the Veteran's STRs, including clinical records. If no additional records could be located, a negative reply was to be obtained. A hand-written notation on the Board's November 2012 remand decision indicates that this remand directive was completed, and that the Veteran's STRs were placed in his file on the Virtual VA paperless claims processing system. The Virtual VA system, however, only has updated treatment records from the Amarillo VA medical center, from April 2009 through February 2012. There is no indication in the file that the complete records were sought. Upon remand, the RO must take steps to obtain a complete copy of the Veteran's STRs, including clinical records, and must place documentation of such efforts into the file. By letter dated December 2012, the Veteran was requested to provide a release for his private medical records from Integris Baptist Medical Center. He did not respond. In addition, the Veteran was scheduled for a VA examination in conjunction with his claim. He did not report to this examination, and has provided no reason for failing to attend. However, because the matter must be remanded for other reasons, the Board, in its discretion, is having the examination rescheduled. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a copy of the Veteran's complete SERVICE TREATMENT RECORDS, TO INCLUDE ALL CLINICAL RECORDS. If these records are unavailable, a negative reply is required. 2. Thereafter, schedule the Veteran for an appropriate VA compensation examination. All diagnostic testing and evaluation should be performed. The examiner should review the claims file in conjunction with the examination. The Veteran's lay statements regarding his medical history should be considered and discussed. The examiner should provide an opinion as to following matters: (a) Did the Veteran's osteomyelitis of the left distal femur undebatably pre-exist his entry into active duty on October 3, 1979? (b) If the Veteran's osteomyelitis of the left distal femur undebatably pre-existed his entry into active duty, was it aggravated during service, i.e., did it undergo a permanent increase severity? State whether this finding is undebatable. (c) If the severity of the Veteran's osteomyelitis of the left distal femur increased during service (i.e., if it was aggravated), was the increase in severity due to the natural progression of the disorder, or was the increase beyond the natural progression of the disorder? State whether this finding is undebatable. (d) If the answers to the above questions are negative, is it at least as likely as not (50 percent or greater probability) that the Veteran's osteomyelitis of the left distal femur osteomyelitis had its clinical onset during active service from October 3, 1979 to September 12, 1980, or is related to any in-service disease, event, or injury? The examiner must provide a comprehensive report including complete explanatory rationales for all opinions and conclusions reached. 3. Next, REVIEW THE CLAIMS FILE TO ENSURE THAT THE FOREGOING REQUESTED DEVELOPMENT HAS BEEN COMPLETED. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate this claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). 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). _________________________________________________ P. M. DILORENZO 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).