Citation Nr: 1316362 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 07-20 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals of stress fracture of the bilateral ankles. 2. Entitlement to service connection for residuals of stress fracture of the bilateral heels. 3. Entitlement to service connection for residuals of stress fracture of the bilateral shins. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 until March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that rating action, the RO denied the Veteran's claims. He subsequently perfected an appeal and moved from Texas to Illinois (the RO in Chicago, Illinois currently has jurisdiction of the matter). In December 2012, the Board remanded the claims for additional development. The Board observes that the Veteran requested a hearing before a Veterans Law Judge sitting at the RO in his August 2007 substantive appeal (VA Form 9). As such, he was scheduled for a hearing at the Waco RO in July 2010 and was notified via a June 2010 letter that was returned as undeliverable. Documentation in the claims file reflects that the Veteran had moved to Illinois. Therefore, he was again scheduled for a hearing at the Chicago RO in April 2012 and was notified of such in a March 2012 letter. However, he failed to report for his scheduled hearing. Therefore, the Board considers his request for a hearing to be withdrawn. 38 C.F.R. § 20.704(d), (e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). A review of the Virtual VA does not reveal any additional documents pertinent to the present appeal with the exception of VA treatment records dated from January 2009 to February 2009, which were considered in the March 2013 supplemental statement of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that VA has a duty to ensure compliance with the terms of a remand by the Board (Stegall v. West, 11 Vet. App. 268, 271 (1998)) and here, as explained below, the agency of original jurisdiction (AOJ) did not substantially comply with the Board's December 2012 remand orders. In the Board's prior remand, it directed the AOJ to provide the Veteran with notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA), afford him a VA examination, and request that he identify any healthcare providers who have treated him for his bilateral ankles, heels, and shins since service. The Board specifically noted that, based on documentation contained in the claims file, the Veteran was no longer incarcerated and had moved from Texas to Illinois. With respect to the Board's determination that a VA examination was necessary to decide the Veteran's claims, the Board noted that, while records dated in June 1980 reveal that the Veteran injured his left leg in an automobile accident prior to service, his service treatment records reflect that, in April 1982, he was treated for a clinical stress fracture of the left medial tibial plateau and plantar fasciitis/calluses and, in September 1982, he was treated for stress fracture of the heels. Additionally, he has alleged continuing symptoms related to his bilateral ankles, heels, and shins. Although the record reflects that the AOJ attempted to undertake the development directed by the Board, it also reflects that all such development was undertaken without recognition of the Veteran's new address in Illinois. Specifically, a copy of the Board's prior remand and a VCAA notice letter were mailed to the Texas facility from which the Veteran was released in 2010. In fact, the VCAA letter was returned as undeliverable as the Veteran had been discharged from the facility. Additionally, while the Veteran appears to have been scheduled for a VA examination at the St. Louis, Missouri, VA Medical Center, which is close to his Illinois residence, in March 2013, he failed to report. However, it is unclear as to what address the examination notification was sent. Further, the AOJ conducted a search for updated VA treatment records that was limited to the North Texas Healthcare System. Although the claims file reflects that the Veteran did not report to the scheduled VA examination and has not submitted any additional evidence, the Board cannot attribute either to any fault of his own. As such, the AOJ must again undertake all of the actions directed in the December 2012 remand. Additionally, the AOJ should also attempt to obtain any outstanding VA treatment records referable to the VA healthcare systems servicing Illinois and Missouri. Accordingly, the case is REMANDED for the following action: 1. Mail a copy of this Remand to the Veteran's last address of record. NOTE that, currently, his last address of record is an Illinois address. 2. Obtain all outstanding VA treatment records. NOTE that the last search for VA treatment records was limited to the North Texas VA Healthcare System, but the record currently reflects that the Veteran lives in Illinois and lives near Missouri - search for records under the VA healthcare systems servicing Illinois and Missouri. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Provide the Veteran with notice of the evidence and information necessary to substantiate his claim consistent with the VCAA and Dingess/Hartman, supra. MAIL THE NOTICE TO HIS LAST ADDRESS OF RECORD. NOTE that, currently, his last address of record is an Illinois address. 4. Concurrent with the above, provide the Veteran with an opportunity to identify or submit any pertinent private medical evidence that is not of record. Send him the necessary authorizations for the release of any private treatment records not currently on file. MAIL THE AUTHORIZATIONS TO HIS LAST ADDRESS OF RECORD. NOTE that, currently, his last address of record is an Illinois address. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran AT HIS CURRENT ADDRESS and afford him an opportunity to submit any copies in his possession. 5. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his claimed bilateral ankle, heel, and shin disorders. MAIL THE EXAMINATION SCHEDULING NOTICE TO HIS LAST ADDRESS OF RECORD. NOTE that, currently, his last address of record is an Illinois address. IF THE VETERAN FAILS TO ATTEND THE SCHEDULED VA EXAMINATION, PLACE A COPY OF THE NOTIFICATION LETTER IN THE CLAIMS FILE. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all current diagnoses of the bilateral ankle, heel, and shin disorders. Based on a review of the record, to include the Veteran's pre-service private treatment records that reflect a left leg injury, service treatment records, and lay statements, did any of the Veteran's currently diagnosed ankle, heel, or shin disorder clearly and unmistakably pre-exist his entry into active duty? (i) If so, is there clear and unmistakable evidence that such pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in severity of the Veteran's pre-existing disorder during service, was that increase clearly and unmistakably due to the natural progress of the disease, or was it above and beyond the natural progression? (ii) If not, is it at least as likely as not that any currently diagnosed disorder of the bilateral ankles, heels, and/or shins is casually related to any incident of service, to include the Veteran's complaints noted in April 1982 and September 1982? All opinions expressed should be accompanied by supporting rationale. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). MAIL ANY SUCH SSOC TO HIS LAST ADDRESS OF RECORD. NOTE that, currently, his last address of record is an Illinois address. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).