Citation Nr: 1314031	
Decision Date: 04/26/13    Archive Date: 05/03/13

DOCKET NO.  05-21 319	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for a left hand disability, to include osteoporosis.

2.  Entitlement to an initial rating in excess of 10 percent for a right hand disability, to include osteoporosis.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1977 to October 1981.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection and assigned a 10 percent rating for osteoporosis of the shoulders and hands as secondary to the service-connected disability of prolactinoma, effective September 4, 2003.  

In an April 2005 rating decision, the RO concluded that the decision not to grant separate non-compensable ratings for osteoporosis affecting both hands was clearly and unmistakably erroneous, and granted service connection for osteoporosis affecting both hands under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5013, assigning a noncompensable evaluation for each hand, effective September 4, 2003.  

In December 2008, April 2010, and November 2012, the Board remanded the Veteran's claims for additional development.  In a December 2011 decision, the RO assigned separate 10 percent ratings for the Veteran's left and right hand disabilities, effective September 4, 2003.  

Following the Board's April 2010 remand, portions of the Veteran's claims file were lost, including VA treatment records, the March 2004 and April 2005 rating decisions, a March 2004 VA examination report, and the pertinent statement of the case (SOC) and supplemental statements of the case (SSOCs).  In February 2012, the Board remanded the Veteran's claims so that these records and documents could be obtained by the RO.  The RO obtained copies of the Veteran's March 2004 VA examination and March 2004 rating decision.  After making numerous attempts to locate the other records, it was determined in an April 2012 Formal Finding of Unavailability, that his April 2005 rating decision, the SOC, and other SSOCs were not available.  A review of the claims file shows that all available efforts were made to obtain these documents, and that further efforts would be futile.  

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

In its November 2012 remand, the Board directed that the Veteran undergo a VA examination to determine the current severity of his service-connected bilateral hand disabilities.  A March 2013 SSOC notes that an examination was conducted on February 16, 2013 and updated on March 5, 2013.  Neither the original VA examination report nor the update from March 2013 was associated with the claims folder, however.  That SSOC also references VA treatment records through December 2012, but only records through April 2012 have been associated with the claims folder.  None of these documents are available in Virtual VA.

The inexplicable failure to associate these records with the claims file prevents the Board from issuing a final decision in this case.  This case must, once again, be remanded in order to obtain these records.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain both the February 2013 VA examination report and the March 2013 update to that report and associate them with the claims folder.  Obtain the Veteran's VA treatment records dated from April 2012 and thereafter and associate them with the claims folder.   

2.  Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated.  Then readjudicate the claim on appeal.  If either benefit remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond.  The case is to then be returned to the Board for further 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).



_________________________________________________
RONALD W. SCHOLZ 
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).