Citation Nr: 1315974 Decision Date: 05/15/13 Archive Date: 06/28/13 DOCKET NO. 09-43 794 ) DATE MAY 15 2013 On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include as due to service-connected left shoulder disability. 2. Entitlement to service connection for a left knee disability, to include as due to service-connected left ankle disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to October 1978. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an April 2007 rating decision by which the RO, in pertinent part, denied entitlement to the benefits sought herein. In October 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video teleconference. The Veteran was unrepresented at the hearing and indicated that he wanted to proceed with the hearing without a representative. A hearing transcript has been added to the record. The Board notes that the claims folder contains a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, dated in May 2010 and reflecting the appointment of the Texas Veterans Commission (TVC). The VA Form 21-22 was not of record in October 2010, when the Veteran had the hearing. At the hearing, the Veteran indicated an intent to file a VA Form 21-22 in order to appoint the Disabled American Veterans (DAV) as his representative. As of this date, there is no indication that the Veteran filed the appropriate paperwork to have DAV represent him. As such, the TVC is the Veteran's appointed representative. In September 2012, the Board remanded the issues on appeal to the RO for further development of the evidence, including obtaining updated VA treatment notes and to obtain a VA supplemental medical opinion. 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. -2- REMAND Additional notice under the Veterans Claims Assistance Act of 2000 (VCAA) is necessary before the Board can render a decision regarding the issue on appeal. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided VCAA notice in April 2006 prior to adjudicating the issues on appeal; however, as the Veteran is now asserting secondary service connection, a revised VCAA notice that outlines the means by which to establish service connection on a secondary basis must be provided. See 38 C.F.R. § 3.310 (2012); Allen v. Brown, 1 Vet. App. 439 (1995). Moreover, in September 2012, the Board remanded the issue of entitlement to service connection for a right shoulder disability and service connection for a left knee disability in order to obtain a VA addendum medical opinions. Following such development, the RO continued the denial of both claims in a February 2013 supplemental statement of the case, a copy of which was mailed to the Veteran. A review of the record, however, reflects that the RO did not mail a copy of the February 2013 supplemental statement of the case to the Veteran's representative of record. See VA Form 21-22 dated May 7, 2010. Accordingly, the RO must send the Veteran's representative, the Texas Veterans Commission, a copy of the February 2013 supplemental statement of the case. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran and his representative appropriate VCAA notice on the claims of service connection for a right shoulder disability, to include as due to service-connected left ankle disability, and service connection for a left knee disability, to include as due to -3- service-connected left ankle disability. See 38 C.F.R. § 3.310. A copy of the notice letter, and any reply, should be included in the claims file. 2. The RO must send the Veteran's representative, the Texas Veterans Commission, a copy of the February 2013 supplemental statement of the case, and provide them the appropriate time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). 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). -4-