Citation Nr: 1316063 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-12 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased evaluation for service-connected left ankle osteochondritis dessicans, evaluated as 10 percent disabling from July 18, 2007 to January 14, 2013, and 20 percent disabling on and after January 14, 2013. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from January 1987 to November 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA) and an October 2012 Board remand. In August 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain relevant VA medical records. The Board would err as a matter of law when it fails to ensure compliance with a Court or Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, where VA medical treatment records are material to the issue on appeal and are not included within the claims file, a remand is necessary to acquire such records, because VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In the prior October 2012 remand, the Board requested that VA contact the appropriate VA medical centers and obtain and associate with the claims file all outstanding records of treatment. The Board noted in the remand that no records beyond February 2012 were associated with the claims file based on testimony provided by the Veteran at his August 2012 hearing that he had fell and broke his ankle the date prior to the hearing and been treated at a VA medical center in the last 30 to 60 days. However, further review of the current paper and virtual claims file indicate that VA treatment records beyond 2010 are not associated with the claims file. A notation in the file indicates that "[a]ll records have already been included." But there is no indication in the claims or paper file that additional records earlier than 2012 had been requested. Additionally, the most recent March 2013 supplemental statement of the case noted that records from the VA Eastern Colorado Health Care System dated through January 2013 and records from the VA San Diego Health Care System dated through December 2012 were reviewed. Those records are not associated with the claims file. Accordingly, remand is required to obtain these records. While on remand, an additional examination must be provided to the Veteran. VA's duty to assist includes providing a thorough medical examination that takes into account the records of the prior medical treatment, so that the evaluation of a claimed disability is fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Here, because the above-noted VA records were not associated with the claims file at the time of the 2013 examination, the Board cannot determine if the otherwise adequate examination was predicated upon a review of the entire relevant medical evidence of record. Accordingly, on remand, an examination predicated on a review of all relevant submitted medical records must be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Centers and obtain and associate with the paper or virtual claims file all outstanding records of treatment, including records dated beginning in February 2010. Additionally, records from the Eastern Colorado Health Care System dated through January 2013 and records from the San Diego Health Care System dated through December 2012 must be specifically requested. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected left ankle osteochondritis dessicans. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must fully complete the appropriate Disability Benefits Questionnaire. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).