Citation Nr: 1314392 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 07-06 510A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to special monthly compensation (SMC) for loss of use of the right foot. The issues of entitlement to service connection for diabetes mellitus, type II, claimed as a result of exposure to herbicides and for an initial ratting in excess of 10 percent for left wrist carpal tunnel syndrome are addressed in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1988. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2006 rating decision. In that rating decision, the RO denied entitlement to SMC based on loss of use of the right foot. Later that same month, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2007. The RO issued a supplemental SOC (SSOC) in April 2009. In June 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that hearing is of record. In December 2011, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC), for additional development and consideration. After accomplishing some action, in October 2012, the AMC issued a SSOC reflecting continued denial of the claim, and has since returned this matter to the Board for further appellate consideration. The Board notes that the Veteran testified before a different VLJ in November 2012 in regard to the issue of entitlement to service connection for diabetes mellitus, which was also remanded by the Board in December 2011 and remains on appeal. That issue is not before the undersigned VLJ, but rather the VLJ who conducted the November 2012 hearing. As such, the matter of service for diabetes mellitus, along with the matter of an initial rating in excess of 10 percent for left wrist carpal tunnel syndrome, are the subjects of a separate decision. See 38 C.F.R. § 20.707 (2012). For the reasons expressed below, the matter on appeal is, again, being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In December 2012, the Board remanded the issue of entitlement to SMC for additional evidentiary development. The Board also noted that "the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a right foot procedure is inextricably intertwined with the issue of entitlement to SMC based on loss of use of the right foot." Accordingly, the Board found that "remand [also] is necessary to allow the RO to appropriately develop and adjudicate the former issue." See Parker v. Brown, 7 Vet.App. 116 (1994); Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Board directed the RO, via the AMC, to gather additional medical evidence and subsequently adjudicate the claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a right foot procedure as well as readjudicate the claim of entitlement to SMC. The December 2012 Remand directives specified that, "if the claim for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a right foot procedure is denied, the claims file should not be returned to the Board until after the Veteran perfects an appeal as to such denial, or the time period for doing so expires, whichever occurs first." The RO denied the Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a right foot procedure in an October 2012 rating decision. The Veteran filed an NOD in November 2012. An SOC was issued in December 2012,; however, the Veteran has yet to perfect an appeal and the time period for doing so has not yet expired. As such, the AMC has not complied with the Board's December 2012 remand directives. 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). As the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a right foot procedure remains inextricably intertwined with the issue of entitlement to SMC based on loss of use of the right foot, the Board cannot render a final decision on these matters. The Board also finds that further RO action on the SMC claim is warranted. As noted above, in the December 2012 remand, the Board directed the RO/AMC to gather additional medical evidence. Although additional VA treatment records have since been associated with the claims file, the Board notes that the claims file reflects that some VA medical records may remain outstanding. Specifically, the VA treatment records that are associated with the claims file reflect that the Veteran has reported spending multiple months in Hawaii on an almost annual basis and receiving medical treatment while he is there. However, only VA treatment records generated through the VA Connecticut Healthcare System are associated with the claims file. Further, the last VA treatment note associated with the claims file is dated August 8, 2012 so additional subsequent notes may now be available. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet.App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet.App. 611, 613 (1992). Hence, the RO should obtain any outstanding records of relevant VA evaluation and/or treatment of the Veteran from the VA Pacific Islands Health Care System for association with the claims file. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO/AMC should also give the Veteran another opportunity to present additional information and/or evidence pertinent to the claim on appeal. The letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see 38 U.S.C.A. § 5103(b) (3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal in light of all pertinent evidence and legal authority. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. Obtain from the VA Pacific Islands Health Care System all outstanding, pertinent records of evaluation and/or treatment of the Veteran. Obtain from the VA Connecticut Healthcare System any such records dated after August 8, 2012. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If he responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet.App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter (or matters, if the Veteran perfects an appeal as to the claim for compensation under the provisions of 38 U.S.C.A. § 1151) on appeal in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the appeal) and legal authority. 6. If any benefit sought on appeal for which an appeal has been perfected remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for the determination, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 7. DO NOT RETURN THE CLAIMS FILE TO THE BOARD UNTIL AFTER THE VETERAN PERFECTS AN APPEAL AS TO THE DENIAL OF THE CLAIM FOR COMPENSATION UNDER THE PROVISIONS OF 38 U.S.C.A. § 1151 FOR RESIDUALS OF A RIGHT FOOT PROCEDURE, OR THE TIME PERIOD FOR DOING SO EXPIRES, WHICHEVER OCCURS FIRST. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet.App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).