Citation Nr: 1311890 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-13 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a bilateral ankle disorder. 3. Entitlement to service connection for residuals of a bilateral knee disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 2005 to April 2006, and he had additional service with the United States Naval Reserve. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a June decision, the Board denied service connection for PTSD and remanded issues of entitlement to service connection for residuals of a bilateral ankle disorder and residuals of a bilateral knee disorder for further development. The Veteran appealed the June 2011 decision to the United States Court of Appeals for Veterans Claims (Court or CAVC) insomuch as it denied service connection for PTSD. In March 2012, the Court granted a Joint Motion for Partial Remand, and the part of the Board's decision, only to the extent that it denied the entitlement to service connection for PTSD, was vacated and remanded for action consistent with the terms of the Joint Motion. The remaining issues of remained in appellant status. The Board finds that a remand is required in order to comply with the terms of the March 2012 Joint Motion for Partial Remand. The June 2011 Board remand directed additional development that included a request to obtain outstanding VA treatment records and for VA examinations to address the claimed bilateral ankle and bilateral knee disabilities. In December 2012, the RO recertified those issues to the Board for adjudication at this time. Unfortunately, the Board finds that an additional remand is necessary prior to review of the appeal for service connection for residuals of a bilateral ankle disorder and residuals of a bilateral knee disorder. See Stegall v. West, 11 Vet. App. 268 (1998). 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 The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C.A. § 5103A (West 2002). In a case of records held by a Federal department or agency, VA shall continue their efforts to obtain these records unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Id. The Court remanded the appeal for service connection for PTSD to the Board in March 2012 for compliance with the instructions in the March 2012 Joint Motion for Partial Remand. The Joint Motion provides that upon remand, the Board should ensure that all Dallas VA Medical Center treatment records are obtained, noting that the last records received from the Dallas VA Medical Center were dated through March 2009. The RO/AMC should obtain updated VA medical records from the VA Medical Center in Dallas, Texas on remand. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error.") With regard to the appeal for service connection for residuals of a bilateral ankle disorder and a bilateral knee disorder, the June 2011 remand order also directed, in pertinent part, that any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2009, should be obtained and incorporated in the claims folder. To date, updated VA treatment records have not been associated with the record. There is no indication that an attempt to obtain VA treatment records was obtained. Accordingly, the Board finds that a remand for the updated VA medical records is also required prior to the Board's review of the appeal for service connection for residuals of a bilateral ankle disorder and residuals of a bilateral knee disorder. See Stegall, 11 Vet. App. at 270, (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any updated VA treatment records dated from March 2009 to the present from the VA Medical Center in Dallas, Texas, and should associate them with the record. If the search for such records has negative results, the RO/AMC should notify the Veteran and place a statement to that effect in the record. 2. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefits sought are not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. J. ALIBRANDO 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).